2009 (12) TMI 940 - AT - Central Excise

Summary

Issues involved: Consideration of CENVAT credit availed by the respondent in respect of capital goods in 2005-06 and imposition of penalty under Section 11AC of the Central Excise Act.

Summary:

Issue 1: Consideration of CENVAT credit availed by the respondent in 2005-06
The appeal pertains to the question of whether the CENVAT credit to the extent of 50% availed by the respondent in respect of capital goods in 2005-06 could be allowed. The respondent could not take the first 50% of the duty paid on the capital goods as CENVAT credit in the previous year (2004-05) due to their final products being fully exempt from payment of duty during that period. The original authority denied the CENVAT credit availed by the respondent in 2005-06 and imposed a penalty under Section 11AC of the Central Excise Act. The Commissioner (Appeals) allowed the appeal filed by the assessee, leading to the present appeal by the department.

Issue 2: Interpretation of relevant legal precedents
The respondent claimed that their CENVAT credit is supported by the decisions of the Tribunal in cases such as Ace Timez vs. CCE, Bangalore 2004 (170) ELT 371 (Tri.-Bang.) and Keihin Fie Pvt. Ltd. vs. CCE, Pune-III 2007 (213) ELT 637 (Tri.-Mumbai). These cases involved situations where the assessee had not availed 50% of the CENVAT credit on capital goods in the first financial year of receipt, and subsequently availed it in the next financial year. The Tribunal held that there was no bar against availing CENVAT credit in the second financial year to the extent of 50% where it was not availed in the first financial year. The department's appeal did not address these crucial decisions relied upon by the lower appellate authority, lacking elaboration on other Tribunal decisions mentioned in the appeal memo.

Conclusion:
The appeal was dismissed by the Appellate Tribunal CESTAT, MUMBAI, upholding the decision of the Commissioner (Appeals) in favor of the assessee regarding the CENVAT credit issue.