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TMI Blog2012 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the process of erection was being carried out has to be considered as the capital goods were in possession and use for manufacture. - Decided in favor of assessee. - E/238/05 - M/36/12/EB/C-II - Dated:- 16-1-2012 - Mr. S.S.Kang , Mr. Ashok Jindal , P.R.Chandrasekharan , JJ. For Appellant: Shri Bharat Raichandani with Ms. Anjali Hirawat , Advocates For Respondent: Shri B.R.Tripathi , Chief Commissioner (AR) Per: S S Kang: Heard both sides. 2. The Referral Bench has referred the following question of law to the Larger Bench:- Whether an assesses is eligible to avail the credit of balance 50% of the amount of duty paid on the capital goods in the subsequent financial year, without installing the same and putting i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, if the capital goods, other than components, spare and accessories, refractories and refractory materials and goods falling under heading no. 68.02 and sub-heading 68.02 and sub-heading 6801.10 of the First Schedule to the Tariff Act, are in the possession and use of the manufacturer of final products in such subsequent years. 4. The issue involved in this case is the interpretation of the provisions as contained under rule 4(2)(b) of the CENVAT Credit Rules which provide that the balance of cenvat credit may be taken in any financial year subsequent to the financial year in which the capital goods were rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be denied on the ground that the capital goods were not put to use. 9. The Revenue filed appeal before the Hon'ble Bombay High Court and the Hon'ble Bombay High Court vide order dated 7.6.2011 held as under:- (2) Rule 4(2 )( b) of the Cenvat Credit Rules as it stood at the material time provided as follows: The balance of Cenvat Credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, if the capital goods other than components, spares and accessories, refractories and refractory materials and goods falling under heading no. 68.02 and sub-heading no. 6801.10 of the First Schedule to the Tariff Act are in the possession and use o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Tribunal on Rule 4(2 )( b) would, in these facts, not give rise to a substantial question of law. The issue of limitation therefore is also of no practical relevance. The Appeal is accordingly dismissed. There shall be no order as to costs. 10. In view of the above decision of the Hon'ble Bombay High Court in Central Excise Appeal no. 139 of 2008 (CCE vs. Ispat Industries Ltd.) order dated 7.6.2011, question referred to the Larger Bench is answered as under:- The condition imposed under the relevant Cenvat Credit Rules, for taking credit of balance of 50% of amount of duty on capital goods in subsequent financial years, in case the capital goods are lying in the factory for installation and the process of erection was being c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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