TMI Blog2008 (1) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-Appeal No.394/2006 CE dated 26.10.2006 by which the appellants have been denied the benefit of availing the cenvat credit in respect of capital goods received during the period 11.5.2002 to 26.6.2003. The credit along with penalty has been confirmed in the impugned order by confirming Order-in-Original No.20/2006 dated 30.3.2006. The ground for denial is that the appellants were not in possession of capital goods when they took the credit. The Bench presided by Hon'ble President and Member (T) by Stay Order No.754/2007 dated 14.9.2007 has considered the issue in assessee's favour and has granted full waiver of deposit and stay of recovery. The finding recorded in Para 2 and 3 of the Stay Order are reproduced herein below. 2. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear in which the capital goods were received in the factory of the manufacturer, if the capital goods, other than components, spares and accessories, refractory and refractory materials and goods falling under Heading No. 68.02 and subheading no. 6810.10 of the first Schedule to the Tariff Act, in possession and use of the manufacture of final products in such subsequent years." In the present case, when the capital goods were received, the appellants were rightly in possession of the duty paying documents and they availed the eligible credit of 50%. In terms of the Rules, the balance 50% of the Credit can be taken in any financial year subsequent to the financial year in which the capital goods were received. The condition is that, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le itself has provided for availing the credit for subsequent year, since they had the duty paying documents and they were eligible to avail the same. 3. The learned JDR opposes the submissions and submits that once the capital goods have been removed on payment of duty, then the question of availing credit does not arise. Hence, the impugned order passed by both the authorities is correct. 4. On a very careful consideration of the issue, I notice that the Division Bench in the Stay Order No.754/2007 dated 14.9.2007 [2008 (221) E.L.T. 533(Tribunal) in Para 2 and 3 extracted supra have analysed the issue in detail and has held that the assessee was eligible to avail cenvat credit for the subsequent year in respect of capital goods s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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