TMI Blog2019 (7) TMI 1774X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods were not put to use on 01.01.2009 before the Appellant applied for area based exemption on 10.06.2003 - HELD THAT:- Once cenvat credit is admissible at the time of receipt of the capital goods the same cannot be denied for the subsequent use for manufacture of exempted goods. This issue is settled by the decision of Larger Bench of this Tribunal in case of SPENTA INTERNATIONAL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE [ 2007 (8) TMI 25 - CESTAT, MUMBAI] . As the issue is settled in the favour of the Appellant by the decision of Larger Bench of this Tribunal followed by other decisions, the appellant is entitled for the credit and the finding of Commissioner in the impugned order is not sustainable - Credit allowed. CEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents were not made available to the audit team on account of the fact that the same were old and not traceable. Ld. Counsel as submitted the compilation of such document for our perusal - on perusal of the documents, it is found that the input/capital goods imported or ingeniously procured have been received by the Appellant and the credit has been taken accordingly. Matter remanded to adjudicating authority to get the document verified, that has been produced and consider the availability of cenvat credit to the Appellant in terms of credit rules and pass an appropriate order - appeal allowed by way of remand. - Excise Appeal No. 50575 of 2018 - Final Order No. 51782 /2019 - Dated:- 3-7-2019 - MR. BIJAY KUMAR, MEMBER (TECHNICAL) AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 in Uttrakhand and started their commercial production in the month of November, 2006 by availing the benefit of Notification No. 49/03-CE dated 10.06.2003. This was intimated to the Department by letter dated 28.10.2006 stating that the product manufactured by them would be on payment of Central Excise duty for first two years by availing the credit under Credit Rules. 3. The Appellant s factory was visited by the officers of Anti-Evasion branch of the Commissionerate on 23.10.2009 and several documents and records were resumed for further investigation under panchanama. After the investigation, the show cause notice dated 06.10.2010 was issued to the Appellant which was adjudicated by the impugned order. Being aggrieved the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her. As the medical grade liquid oxygen of higher purity it could be used even for industrial purposes but not vis-a-vis, which is the Department stand, is not correct in our view as this storage tank has exclusively been used for the storage of medical grade oxygen which is exempted. 6. After going through the submissions made we are of the considered opinion that the documentary evidence has been adduced by the Appellant regarding use of storage tank both for storage of industrial grade oxygen and medical grade oxygen. Therefore, the charge of the Department regarding exclusive use of this tank for storage of goods which exempt from payment of duty is not sustainable. We refer and rely on the following decisions while arriving at the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant by the decision of Larger Bench of this Tribunal followed by other decisions, we hold that the appellant is entitled for the credit and the finding of Commissioner in the impugned order is not sustainable. 8. The next issue is denial of cenvat credi amounting to ₹ 13,65,619/-, availed on the angles, channels etc., for making structural support for the capital goods. This credit was denied placing reliance on Rule 2(k) of Credit Rules. Learned Advocate relied upon the decision of Gujrat High Court in case of Mundra Ports Special Economic Zone Ltd. vs. CCE, [2015 (39) STR 726 (Guj.)], wherein it is held that the period of dispute is prior to 07.07.2009 and hence the credit cannot be denied. We are in agreement with the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was placed on the following decision a. Commissioner of Customs C. Excise vs. International Tobacco Co. Ltd. [2017 (347) ELT 457 (ALL.)] b. Sona Koyo Steering Systems Ltd. vs. Commissioner,[2013(296) ELT 481 (Tri.-Del.)] c. Maruti Udyog Ltd vs Commissioner,[2004(165) ELT 226 (Tri.-Del.)] d. Bando India (P) Ltd. vs. CCE, 2010 (262) ELT 1103(Tri.-Del.)] 10. We have considered the submissions made by the learned Advocate and also the ground on the denial of cenvat credit in the impugned order. 11. We find that there is no dispute regarding receipt of the capital goods in the factory of the Appellant and the same has been put to use in the manufacture of dutiable goods the credit cannot be denied on merely technic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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