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TMI Blog2013 (9) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs, Excise & Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata (hereinafter referred to as "the Tribunal") in Appeal No.EDM-819/04. The matter at issue is the CENVAT credit availed of by the Corporation on the capital goods imported by it in the financial year 2000-2001 for its refinery at Barauni in the State of Bihar. It is not in dispute that on receipt of the capital goods, the Corporation availed of the CENVAT credit in the same year to the extent of 50% of the Excise Duty paid by it. The remaining 50% of the CENVAT credit, the Corporation availed of on 1st April 2002. The said CENVAT credit was not allowed by the Commissioner of Central Excise, Patna under his order dated 24th September 2004. The said order has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile provisions of Rule 57Q of the Central Excise Rules, 1944 ? In connection with the above, it would be relevant to mention that the provisions of Rule 57Q (7) of the erstwhile Central Excise Rules, 1944 imposed a condition and restriction that the credit "shall not be taken on a date prior to the date on which such capital goods are installed or, as the case may be, used for manufacture of excisable goods". However, the said scheme itself was modified in the Cenvat Credit Rules, 2001 and the Cenvat Credit Rules, 2002 and the Rule 4(2) (b) of both these provisions merely required possession and use of the capital goods by the manufacturer "in such subsequent year". In the present case, admittedly, the capital goods in question were in pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot be availed of. He has submitted that the decision of the Tribunal and the authority below are neither supported by the language of the relevant Rule nor by the judgments of the Tribunal or the High Courts. The relevant Rule 4(2) of the CENVAT Credit Rules, 2002 reads as under: "2(a) The CENVAT credit in respect of capital goods received in a factory at any point of time in a given financial year shall be taken only for an amount not exceeding fifty per cent of the duty paid on such capital goods in the same financial year: Provided that the CENVAT credit in respect of capital goods shall be allowed for the whole amount of the duty paid on such capital goods in the same financial years if the said capital goods are cleared as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Ltd. v. Commissioner of Central Excise, Mumbai-II, {2012 (277) E.L.T. 353 (Tri.-LB). However, the very orders of the Tribunal, the interpretation placed by the Tribunal, Mumbai Bench has been doubted by the said Bench in the matter of Commissioner of Central Excise, Mumbai-II v. Fiat India Pvt. Ltd., {2009 (240) E.L.T. 620 (Tri.-Mumbai). The New Delhi Bench of the Tribunal has, in the matter of Goyal M.S. Gases Pvt. Ltd. v. Commissioner of Central Excise, Ghaziabad, {2004 (168) E.L.T. 369 (Tri.-Del.)}, taken a contrary view. The said Tribunal held that for availing the remaining 50% of the CENVAT credit not only the capital goods should be in possession of the manufacturer but it should be in the use also. Similar view has been expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency". In our opinion, the phrase, "in possession and use of the manufacturer of final products' is clear and unambiguous. The said phrase calls for one and only one interpretation and does not call for any external aid to cull the meaning of the said phrase. In our opinion, the said phrase provides for two conditions, (1) the manufacturer should be in possession of the capital goods in the year in which it claims remaining 50% of the CENVAT credit; and (2) such capital goods shall be in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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