TMI Blog2019 (6) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... ods. Appeal allowed - decided in favor of appellant. - Ex. Appeal No.169/11 - FO/75270/2019 - Dated:- 25-2-2019 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Ms. Romi Agarwal, Asstt. Manager (Finance) for the Appellants(s) Shri D. Halder, Asstt. Commr. (AR) for the Revenue ORDER Per Bench : The present appeal is directed against the Order-in-Original No.94/Commissioner/CE/Haldia/Adjn./2010 dated 26.11.2010. 2. The appellant is a manufacturer of petroleum products at Haldia. They procured capital goods for setting up a new plant (ISO Dewaxing Unit) and availed the cenvat credit on duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Rule 4(2)(b) of the Cenvat Credit Rules, 2002. He submitted that this Rule provided that the capital goods should be in the possession and use of the manufacturer of final products before availing the cenvat credit (2nd Installment). He submitted that these conditions have been satisfied by the appellants and hence, the balance cenvat credit cannot be denied to the appellant. (ii) He relied on the decision of the Larger Bench of the Tribunal in the case of BPCL Vs. CCEx., Mumbai II reported in 2012 (277) ELT 353 (Tri-LB), in which the Tribunal has decided identical issue. The Larger Bench of the Tribunal held that the second installment of the cenvat credit on capital goods can be allowed even in cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axing Unit in the Haldia Refinery. Cenvat credit on capital goods is to be availed in two installments, as per the provision of Rule 4 of the Cenvat Credit Rules, 2002. There is no dispute on the availment of credit on the first installment in March, 2002. The second installment of the 50% of the cenvat credit stands availed by the appellant in April, 2002. This is sought to be denied by the Revenue for the reason that in April, 2002, ISO Dewaxing Unit was under erection and was ultimately commissioned and capitalized only w.e.f. 26.03.2003. 8. The availment of cenvat credit on capital goods during the period of dispute is governed under Rule 4 of the Cenvat Credit Rules, 2001/2002. The said Rule 4 is reproduced below : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble if the capital goods are in the possession and use of the manufacturer of final products in the subsequent year. To resolve the dispute in the present case, it is required to decide whether the conditions of the above Rule are satisfied by the appellants. It is not in dispute that the capital goods used in setting up of ISO Dewaxing Unit was commissioned on 26.03.2003. In this connection, we find that identical issue has decided by the Larger Bench of the Tribunal in the case of BPCL (supra). The Tribunal observed as follows : 8. In another case of Ispat Industries Ltd. v. CCE, Raigad reported in 2006 (199) E.L.T. 509 (Tri.-Mumbai), the Tribunal held that in case the capital goods were at the stage of erect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not actually been put to use. From the order of the Commissioner, it appears that the finding of the Commissioner is that the availment of the credit was premature. 4. The Tribunal has held that the expression possession and use of the manufacturer of final products have to be read together and would denote that the goods were available for use in the manufacture of the final products. In the present case, there is a finding of fact that the capital goods were lying in the factory for installation and the process of erection was being carried out. In this view of the matter, the requirement that the goods were in the possession and use of the manufacturer in the year in which the balance of credit was availed of has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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