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TMI Blog2011 (3) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods, the appellant cannot be deprived from taking the credit later-on - Held that: the appellants are entitled for CENVAT credit and they cannot be denied the CENVAT credit merely on the ground that they have not taken the credit immediately - Appeal is allowed - E/209/2010-Mum - A/251/2011-WZB/C-II/(EB) - Dated:- 10-3-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri T. Vishwanathan, Advocate, for the Appellant. S/Shri W.L. Hangshing and A.K. Prasad, Jt. CDRs, for the Respondent. [Order per : Ashok Jindal, Member (J)]. The appellants are in appeal against the impugned order wherein the demand of duty and penalty has been confirmed on the ground that the appellants had availed credit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e placed reliance on Board s Circular dated 29-8-2000 and Philips India Ltd. v. CCE - 2007 (213) E.L.T. 584 (T) = 2007 (6) S.T.R. 410 (Tribunal) and prays that the impugned order be set aside. 4. On the other hand the learned Jt. CDR Shri W.L. Hongshing for the Revenue submitted that as per the Board s Circular dated 29-2-1996 the assessee is not entitled to take the credit on the strength of the Bills of Entry unless and until its entries are in the name of the person who is taking the credit. He further submitted that the intent of the legislature is that the assessee should take credit immediately on procurement of inputs and, if he failed to take the credit as early as possible then it should not be open to the assessee to take the cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein the Hon ble apex court has held as under :- 10. On reading Rule 52A the position which emerges broadly is that the said Rule refers to eligibility for claiming MODVAT Credit, whereas Rule 57G refers to procedure to be observed by the manufacturer for taking credit for the duty paid on the inputs received by him. A bare reading of Rule 52A shows that no excisable goods shall be delivered from a factory or a warehouse except under an invoice signed by the owner of the factory or his authorised agent. Rule 52A, therefore, applies to a situation where goods are cleared from a factory or a warehouse to the place of assessee. For such a situation the proviso in Rule 57G stipulates that no credit shall be taken unless the inputs are receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apex court here-in-above, we hold that the order of denial of credit on the ground of the Bills of Entry are not in the name of the appellants, is not sustainable. 6.1 Coming to the second issue, we are not in agreement with the contention of Shri A.K. Prasad Jt. CDR to refer this matter to the Larger Bench as we have examined the Board Circular dated 29-8-2000 and find that the para 10 of the Circular deals with the situation which is reproduced herein as under :- 10. Rule 57AC provides that CENVAT credit may be taken immediately on receipt of inputs in the factory. Some apprehensions have been expressed that if the CENVAT credit is not taken immediately , like within 24 hours or so, the field officers may deny the CENVAT credit. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restriction in Rule 57G(5) being inapplicable to credit taken on the strength of Bill of Entry which is not a document issued, and that the relevant date for computing the six months period is 10-1-01 which is the date on which SAD was paid etc. 6.2 Therefore, we are of the view that if the appellant has not taken the credit immediately on receipt of the goods, the appellant cannot be deprived from taking the credit later-on. In fact in our view, if the appellant has not taken the credit immediately, it is affecting the appellant not the Revenue because the appellant may fail to take credit in future or atleast they are not having credit balance in the CENVAT credit account. We are in agreement of the Board Circular as well as the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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