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TMI Blog2012 (3) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ter in the Yo Frooti unit at that time and wrongly availed the duty credit of Rs.23,91,513/- on capital goods. Held that :- the goods (both the finished goods as well as raw materials) were found in the same premises, it cannot be held that there was an intention to evade duty or to avail ineligible Cenvat credit on inputs, which were found short in premises of one unit but available in the premises of other unit so it will be considered an offence of a technical nature rather than any removal without payment of duty. From the records of the case it is seen that at the time of receipt of the capital goods, the product Yo Frooti was completely exempt from duty and Yo Frooti became dutiable only after a gap of few months and the eligibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequently, the Advocate informed the Registry that they need to file two more appeals and accordingly they filed two more separate appeals and the delay occurred on account of confusion arising in respect of number of appeals to be filed. In any case, the process was completed subsequently. Considering the reasons given for delay in filing the appeals satisfactory, we condone the delay and admit the appeals for consideration. We are now taking up the stay application for consideration. 3. The facts arising for consideration of this case are as follows:- 3.1 M/s.Parle International Ltd., (Yo Frooti Division) Noticee No.1, M/s.Parle International Ltd., (Jolly Jelly Division), Noticee No.2 and M/s.Parle Bottling Ltd., (Agro Division) Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of finished goods, namely, 'Bailley Aqua Mineral Water' on 19/03/97. However, they had declared that the actual use was for packing of Yo Frooti which was exempt from duty. Further, there was no manufacture of mineral water in the Yo Frooti unit at that time. It thus appeared that they had wrongly availed the duty credit of Rs.23,91,513/- on capital goods, which were used in the manufacture of Yo Frooti, which was completely exempt from duty and, therefore, the modvat credit availed in respect of capital goods was irregular. 3.3 On completion of investigation, show-cause notices were issued to all the three units proposing to demand Central Excise duty on the finished goods found short and also modvat inputs found short in each of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re seized and provisionally released, have been subsequently cleared on payment of appropriate duty. He submits that since all the three units operated from same premises, even though there was separate Central Excise registration, there was no partitions/compound walls and all the three units had a common entrance/exit. Since, the goods (both the finished goods as well as raw materials) were found in the same premises, it cannot be held that there was an intention to evade duty or to avail ineligible Cenvat credit on inputs, which were found short in premises of one unit but available in the premises of other unit. He also points out that, though at the time of receipt of capital goods in the Yo Frooti unit, the product was exempt subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he product Yo Frooti was completely exempt from duty and Yo Frooti became dutiable only after a gap of few months. This Tribunal in the case of CCE Vs. Surya Roshni Ltd., reported in 2003 (155) ELT 481 has held that the eligibility for Cenvat credit has to be determined at the time the goods are received from the manufacturer and if the goods become dutiable subsequently and the manufacturer of goods puts the capital goods to other use, the same will not revive the question of admissibility of modvat credit on capital goods. The said order of the Tribunal was also upheld by the hon'ble Supreme Court in Civil appeal No.8512/03 decided on 10/11/2003 reported in 2003 (158) ELT A273 . 8. In view of the foregoing discussion, we are of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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