TMI Blog2019 (7) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... and credited. In view of the decisions of this Tribunal in M/S. NEPA LTD. VERSUS CCE, INDORE [ 2013 (11) TMI 776 - CESTAT NEW DELHI] and the Apex Court decision in COMMISSIONER OF C. EX., CHENNAI-I VERSUS CHENNAI PETROLEUM CORPN. LTD. [ 2007 (4) TMI 4 - SUPREME COURT] , it is held that the appellant being a PSU would not have reason to avail wrong credit with intention to evade payment of duty. Moreover, since the central excise levy was made applicable for the first time, the issue of availing credit on capital goods during the cut off date would arise as a one-time affair for which there may be inadvertent error not attributable to wilful suppression or deceit to avail irregular credit. The issue of availment of credit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the assessee did not avail the benefits of CENVAT credit. In the instant case, the appellant chose to pay duty at the normal tariff rate of 5% with simultaneous benefit of CENVAT credit facility in terms of CENVAT Credit Rules, 2004 ( CCR ). The appellant received an excavator machine on 17.02.2011 in a knocked down condition, which was assembled and was ready for use on 17.06.2011. DRR/ GRN was prepared on 17.06.2011 when goods were finally accepted as per the practice followed by the appellant, being a PSU unit. Accordingly, the said goods (excavator) were recorded in the books of account on 17.06.2011, based on which the said date of 17.06.2011 was shown in the CENVAT credit register. A Show Cause Notice dated 02.06.2016 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n below: ..26. Coming to the core issue on hand, as we have pointed out earlier, the expression financial year appearing in Rule 4(2)(a) cannot be rendered redundant or nugatory. The capital goods were received admittedly during the financial year 2002-03. The main final product, namely refined edible oil was exempt from payment of duty only up to 28-2-2003 during the financial year 2002-03. The goods became dutiable with effect from 1-3-2003. Additionally, all the three by-products were not exempt from payment of duty during any part of the financial year 2002-03. Rule 4(2)(a) is not worded as follows : Cenvat credit shall be availed with reference to the date of receipt of the capital goods. The Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal goods received in a particular financial year, would not be a proper interpretation to the Rules . On the basis of the above decision of the Hon ble High Court, he submitted that CENVAT credit on capital goods can be claimed anytime during a given financial year and the same is not restricted on the date of receipt of the goods in the factory. He further submitted that the impugned order of Ld. Commissioner (Appeals) is based on the Larger Bench decision of Spenta International Ltd. v. Commissioner of Central Excise, Thane [2007 (216) ELT 133 (Tri-LB.)]. In the said decision, the Larger Bench affirmed the Tribunal s decision in the case of CCE v. Surya Roshni Ltd.2003 (155) ELT 481 (Tri-Del.) which matter is pending f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for production of coal on which central excise duty have been paid. The Ld. CA further submitted that the duty demand is wholly barred by limitation. He submitted that appellant s accounts have always been audited by various Govt agencies and details of CENVAT Credit availed was duly disclosed vide ER-1 return for the month of May 2013 along with CENVAT Credit register. If there was any wrong availment of credit, it was always open to the Department to verify the credit availed as per the returns to determine the legal eligibility within normal period of limitation. He also submitted that PSUs do not have any intention to evade the payment of tax as has been held in CCE, Indore vs. Nepa Ltd 2013 (298) ELT 225 (Tri-Del), as al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein the LB decision of Spenta International has been followed. He also submitted that the appellant is not entitled to the benefit of time bar for the reason that that they intentionally stated the date of receipt of capital goods as 17.06.2011 instead of actual date being 17.02.2011 to avail wrongful credit. 6. Heard both sides at length and perused the appeal records. 7. The short issue that arise for consideration in the instant appeal is with respect to availment of CENVAT credit of excise duty paid on the capital goods received prior to the imposition of central excise levy on final product (i.e. Coal). On perusal of the entire case records, I am of the view that the case can be decided on the point of limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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