2011 (10) TMI 303 - AT - Central Excise

Availement of Cenvat Credit before receipt - Capital goods received on 22.12.05 credit availed in november - Assessee a partnership firm liable to pay tax for quater ended on January - Held That - When the date of payment was 5th January, 2006, on this count, it does not make any difference that the credit was shown to have taken in the month of November or December 2005. Credit available upto 31/12/2005, could have been utilized towards payment of Service Tax. The appellants have made credit entry in their record in the month of November, 2005, instead of making the same in December, 2005, by itself cannot be made a ground for denial of credit on such technical ground,

Summary

Issues: Availability of cenvat credit on capital goods purchased before receipt.

Analysis:
The dispute in this case revolves around the availability of cenvat credit on capital goods purchased by the appellants before their actual receipt. The Revenue contended that as per the Cenvat Credit Rules, credit can only be availed after the receipt of capital goods. The appellants had purchased the goods in December 2005 but had taken the credit in November 2005. The Commissioner (Appeals) upheld the denial of credit, stating that the credit was wrongly taken before the goods were received. However, the Commissioner also acknowledged that the goods were received and used for providing taxable output services, and the credit was available post-receipt. The Commissioner reduced the penalty imposed under Rule 15(1) but waived the penalty under Rule 15(2).

The Tribunal noted that the Commissioner's order was contradictory, as it acknowledged the entitlement to credit post-receipt but dismissed the entire credit. The Tribunal emphasized that the appellants were entitled to credit after the goods were received, regardless of the timing of the credit entry in their records. The Tribunal found no valid reason for denying the credit when the goods were received as per records.

Moreover, the Tribunal highlighted the lack of information regarding whether the credit availed in November 2005 was utilized before the actual receipt of goods. Due to this missing information, the Tribunal remanded the matter to the original adjudicating authority for verification and confirmation of interest liability if any. The Tribunal also directed the authority to decide on the penalty based on the credit utilization during the intervening period. The stay petition and appeal were disposed of accordingly, with the matter being remanded for further verification and decision-making by the adjudicating authority.