TMI Blog2004 (3) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the credit of Rs. 2,39,96,904/- being the excess credit availed by the appellants on capital goods, besides imposition of penalty of Rs. 2,000/- under Rule 173Q of the C.E. Rules, 1944. He had also ordered for recovery of interest in terms of Section 11AA of the C.E. Act, 1944. 2.The brief facts of the case are that the appellants are engaged in the manufacture of cement and clinker falling under Chapter 25 of the Schedule to the CETA, 1985. They are availing Modvat credit of duty paid on the inputs as well as capital goods under Rules 57A and 57Q of the C.E. Rules. The appellants after filing necessary declaration for Modvat credit of duty paid on capital goods, imported certain capital goods under Project Import Regulations falling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 1-4-2000. Rule 57Q as it existed between 1-3-97 and 29-2-2000 permitted Modvat credit on CVD under project import only to the extent of 75% of the CVD paid under Section 3 of the Customs Act, 1962 and the limitation was removed vide Notification 11/2000-(N.T.), dated 1-3-2000. (2) Since installation was completed only on 6-3-2000 pursuant to the amendment by Notification No. 11/2000-(N.T.), appellants availed 100% CVD. (3) The Modvat credit on capital goods scheme came into force with effect from 1-3-1994. At the time of inception of the scheme there was no embargo as to the point at which credit ought to be availed. Therefore, like the input Modvat scheme, the credit was available the moment goods were received inside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a). 4.Smt. Bhagyadevi, learned SDR on the other hand invited our attention to sub-paras (2) and (7) of Rule 57Q. She has submitted that at the relevant time, when the goods were received into the factory, the credit available was 75% and the credit was enhanced to 100% only by the amendment by Notification No. 11/2000-C.E. (N.T.), dated 1-3-2000 and inasmuch as in the present case, the goods were received into the factory at the time when the credit allowable was only 75%, the authorities below have rightly held that the appellants are not eligible for 100% credit. She has also invited our attention to the comments received from the Commissionerate, a copy of which has been filed in court wherein it is inter alia stated as under : (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (6) There are two aspects of eligibility (i) eligibility of any particular item to avail capital goods credit, and (ii) quantum of credit eligible. Here both the above criteria were clear i.e. to say that the particular item was qualified as "Capital goods" and the quantum eligible credit was 75% of the duty paid. Hence there was no dispute about the eligibility. Accordingly, the appellant is eligible for only 75% of the duty paid and subsequently they do not have any right to change their stand until otherwise any Notification in this regard has been issued extending the benefit retrospectively. Notification No. 11/2000 is only prospective in nature. 4.1 The learned SDR also invited our attention to the judgment in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the facts as noted above, we observe that the only issue that arises for consideration in the present appeal is whether the date of receipt of the goods in the factory or the date of availing the Modvat credit is relevant to the quantum of credit admissible. We observe that this issue is no longer res integra as the issue has already been decided in favour of the Revenue by various decisions of the Tribunal such as : (a) Binani Cement Ltd. v. CCE, Jaipur-II reported in 2002 (143) E.L.T. 577 wherein it has been held that vested right of taking credit arise on the date of receipt of the goods and that date of installation of the goods only being a deferred date of taking credit for administrative reasons, credit is eligible on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e installed in the factory, as per their convenience. Therefore, the quantum that would be permissible has to be with reference to the date of receipt of the capital goods in the factory and note the date of installation or use. 8.In the instant case, the quantum of credit permissible was only 75% at the relevant time when the goods were received in the factory. It was on a later date the quantum was raised to 100% by amending Notification No. 11/2000, dated 1-3-2000 and this Notification is not retrospective. Therefore, we are of the considered opinion that the appellants are eligible to claim the benefit that was permissible on the date of receipt of the capital goods in the factory. In view of our discussion above, following the ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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