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TMI Blog2011 (10) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... a ground for denial of credit on such technical ground, - E/4126/10-SM - - - Dated:- 14-10-2011 - Mrs. Archana Wadhwa, J. Present for the Appellant: Shri Vaibhav Jain, Advocate Present for the Respondent: Shri S.K.Panda, JCDR PER: ARCHANA WADHWA After dispensing with the conditions of pre-deposit of duty and penalty, I proceed to decide the appeal itself with the consent of both sides. 2. The dispute relates to availability of cenvat credit on capital goods purchased by the appellants in the month of December, 2005. It is seen that that the appellants purchased the said capital goods from the buyers under invoice dated 5.12.05 and the said capital goods were received in the factory on 22.12.05 whereas they had taken th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the Appellant had wrongly taken the credit on the capital goods before it receipt. The Adjudicating Authority has rightly disallowed the credit taken in the month of November. I held accordingly. Further I find that, it has not been disputed that the receipt of the capital goods in the premises of the Appellant and the capital goods was being used in the providing taxable output service. Also this capital goods was received alongwith invoice which is a prescribed document for taking credit. Thus the credit is available to the Appellant after 22/12/2005 and the substantial benefit cannot be denied. Further, I find that the appellant are partnership firm, and as per the proviso to Rule 6 (1) of Service Tax Rules, 1994, they were liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of order of the Commissioner (Appeals), shows that the said order is self contradictory. On one hand, the Commissioner (Appeals) has observed that the appellants were entitled to credit after 22.12.05 i.e. after the date of receipt of the capital goods in the factory premises and on the other hand he has dismissed the entire credit. He has also observed that the appellants have not earned any benefit by availing of credit in the month of November of itself. inasmuch as they were liable to pay service tax by 5th January, 2006. As such, if the credit would have been taken in the month of December, the same would have been availed for payment of duty in January, 2006. 5. I find that there is no dispute about receipt of the capital ..... X X X X Extracts X X X X X X X X Extracts X X X X
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