2010 (1) TMI 404

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..... totally new stand and he said that the Cenvat credit register had not at all been maintained during the period from September 2004 to August 2006 and the same appears to have been prepared in the month of September 2006 by one person using one pen and bearing signature without date. Thus the Commissioner (Appeals) rejected the claim for Cenvat credit on a totally new ground which was neither before the Original Adjudicating Authority nor was in the show cause notice. Held that- disposal of appeal while hearing stay matter heard at length and nothing much left for final hearing. - E/1297/2009 - A/109/2010-WZB/AHD - Dated:- 29-1-2010 - Shri B.S.V. Murthy, Member (T) Shri P.M. Dave, Advocate, for the Appellant. Shri S.K. Mall, SDR .....

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..... submits that after the reply to show cause notice was furnished, the department had undertaken verification of the submissions made by them which is coming out from the correspondence between the Range Superintendent and appellant. He also drew my attention to the copies of invoices and copy of the concerned Cenvat credit account to show that the appellants regularly maintained the Cenvat credit account. He also submitted that even though Commissioner (Appeals) has taken a totally new ground, yet he would like to submit that the register has the same hand writing in view of the fact that the same person has been maintaining the records and this person has been with the company for more than ten years. In any case, even if it is assumed that .....

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..... n and in the normal course credit could not have been denied and should not have been denied on this ground. I also find that it is not the case of Revenue that appellant is not eligible for the Cenvat credit. Further, even assuming that appellant is not eligible for the credit because they failed to show it in the ER-1 return, yet in view of the decisions cited by the learned advocate which provide that credit can be taken at any time and it is not necessary that it should be taken immediately on receipt of the inputs or on payment of service tax to the service tax provider, credit would be admissible. I also find that the decisions cited by the learned advocate are squarely applicable to the facts of this case. Further, I find that the de .....

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