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TMI Blog2011 (3) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... was no work in progress - no allegation that the assessee had utilized the so called credit attributable to the work in progress and the question of reversing the same would not arise, order set aside, questions of the law framed are answered in favour of the assessee and against the revenue - C.E.A. Nos. 23 & 24 of 2009 and 11 & 91 of 2010 - - - Dated:- 31-3-2011 - N. Kumar and Ravi Malimath, JJ. N.R. Bhaskar for the Appellant. K. Parameshwaran for the Respondent. JUDGMENT There is a delay of 5 days in preferring CEA No. 23/2009. The application is not opposed. Accepting the cause shown in the affidavit filed in support of the application for condonation of delay, delay of 5 days in filing the appeal is condoned. Misc. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise. In fact it took note of the decision of the Tribunal in the case of the assessee itself where it was held that when there are credit lapses at the end of the financial year, there is no question of demanding any duty and therefore, it held, the payment of duties is without any basis and accordingly, it set aside the said order. Consequently, it also set aside the order in respect of the penalty. Being aggrieved by the same, revenue is in appeal. 4. This appeal came to be admitted to consider the following substantial questions of law : (a) Whether the order of the CESTAT is legally sustainable in allowing the claim of the assessee despite the fact that there was work in progress and the assessee has failed to disclose the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption under the SSI scheme. It is true that he had shown work in progress in the balance sheet which in fully audited and certified, but it is his specific case, though it was shown in the balance sheet, correspondingly on Cenvat credit was availed as factually there was no work in progress. Therefore, they did not reverse the said entry. The Tribunal considering all the material on record has recorded a categorical finding of fact that there is no evidence that there was no work in progress. There was no allegation that the assessee had utilized the so called credit attributable to the work in progress and the question of reversing the same would not arise. Therefore, it held, the order passed by the assessing authority and the appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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