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TMI Blog2012 (9) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant on such capital goods merely on the ground that physically such goods were not shifted to the factory before 1-3-97 - in favour of assessee - 806 of 2005 - - - Dated:- 29-7-2011 - Akil Kureshi and Sonia Gokani, JJ. REPRESENTED BY : Shri S.N. Thakkar, Advocate, for the Appellant. Shri Gaurang H. Bhatt, Advocate, for the Respondent. [Judgment per : Akil Kureshi, J. (Oral)]. These appeals arise out of similar factual and legal background. They have been heard together and are being disposed of by this common judgment. For the purpose of this judgment, we may record the facts as emerging from Tax Appeal No. 806 of 2005. 2. The appellant has challenged the judgment of the CESTAT dated 26-7-2004 [2004 (177) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erboards of all sorts under Chapter 48 at village Ambheti, Tal: Dharampur, Dist: Valsad. We have imported complete paper machinery from Canada under the Project Import Policy of Import Export Policy 1992-97 for our said project. Our is a Public Limited Company in the name and style of DAMAN GANGA PAPERS LTD., having Regd. Office at `C Wing, 1st Floor, Rizvi Nagar, S.V. Road, Santacruz (W), Mumbai-400 054 and Admn. Office at Plot No. 256, Silvassa Road, GIDC, Vapi-396 195. Before the completion of construction of our imported capital goods at GIDC, Vapi. After completion of factory construction work, we will shift our entire Plant and machinery at village Ambheti, Tal. Dharampur, Dist. Valsad. Before shifting/transferring of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it on such additional duty paid on the capital goods. on the other hand, case of the Department was that by virtue of the provisions contained in sub-rule (3) of Rule 57Q of the Central Excise Rules, 1944 introduced with effect from 1-3-97, the appellant would not be entitled to 100% credit on such additional duty, but such credit would be limited only 75% of the duty paid. 5. Above controversy centered around one factor, namely, whether the provisions of Rule 57Q required that the goods should be received in the factory and whether in the present case, it can be stated that the goods were received in the factory of the appellant. 6. The Tribunal in the impugned judgment referred to the statutory provisions and came to the conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and in the meantime, with effect from 1-3-97, the statutory provisions underwent change and the credit entitlement of the assessee was revised. In short, he submitted that the Tribunal committed no error. 9. Having thus heard the learned counsel for the parties and having perused the orders on record, at the outset, we may note the relevant statutory provisions. Rule 57Q, which is under Chapter AAAA pertains to applicability of the said chapter to specified final products. Sub-rule (1) of Rule 57Q contains the table of products and goods and the final products which would be covered by the provisions of Chapter AAAA. Sub-rule (2) of Rule 57Q pertains to credit on the duty of excise or the additional duty leviable under Section 3 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit of duty was allowable under any other rule or notification prior to the 1st day of March, 1997) shall not be allowed if such capital goods were received in the factory before the 1st day of March 1997. If we closely peruse sub-rule (3) of Rule 57Q, it would reveal that on introduction of said sub-rule with effect from 1-3-97, entitlement of a manufacturer to the credit for additional duty under Section 3 of the Customs Tariff Act was with effect from the said date made limited to the extent of 75% of such additional duty. It is not in dispute that upto 1-3-97, insofar as the present appellant is concerned and the capital goods is imported, 100% was available under the schemes, governing the field. 10. As per sub-rule (5) of Rule 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factory was not completed, the appellant could not shift the goods within the factory premises but stored it at a place 15 k.m. away in its Administrative office. As soon as construction was about to-be over, under intimation to the Department, on or around 1-5-97, such machinery was shifted, in such a case can it be stated that the goods were not received in the factory? In our view, taking such approach would be highly technical. If the assessee had, discarding the risk factors shifted the machinery to the factory before 1-3-97, surely it was entitled to all the benefits under the old provisions ignoring sub-rule (3) of Rule 57Q which was introduced on 1-3-97. Further if for some practical reasons, looking to the peculiar facts such goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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