9911796707
TMI Blog2008 (1) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 learned advocate, who appeared on behalf of the appellant, stated that, the appellants received capital goods in the years 2003 and 2003-04. They availed 50% of the duty paid as modvat credit under the prevailing Rules. However, in 2004 and 2005, they cleared the capital goods on payment of full duty. They realized that they had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture 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 financial year, in which they take credit, the capital goods should be in the possession and use of the manufacturer. It is not the dispute that, 2004-05, which is the year, in which the credit was taken, was subsequent to the year in which the goods were received. Moreover, in that financial year, the appellant were actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 set up in the factory. Merely because the capital goods were removed on payment of duty, their plea for availing the cenvat credit in terms of duty paying documents during the subsequent year cannot be denied, as there is no provision in law for such denial. I am agreeable with the finding already recorded by the Division Bench in its Stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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