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TMI Blog2013 (2) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... gal and correct in allowing the utilization of Cenvat credit in the month of December 2005 which ought to have been taken and utilized in the month of November 2005 as per the provisions of the Notification No. 39/2001-C.E., dated 31-7-2001? (ii) Whether by holding supra, the Tribunal is right in reading down the provisions of the Notification No. 39/2001-C.E., dated 31-7-2001, as amended, and thereby rendering the said provisions redundant? 2. Briefly stated, the issue is that the respondent assessee while availing duty exemption for industry situated in Kutch area under Notification No. 39/2001, dated 31-7-2001, had claimed refund of a sum of ₹ 4,29,44,310/-. The Adjudicating Officer restricted such claim to ₹ 60,50, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment that the respondent did not utilize the Cenvat credit accumulated during the months of March to November 2005, instead did so in the month of December 2005 and the short fall was paid through personal ledger account which was in breach of the above noted condition. Before the Authority, the assessee had, however, pointed out that there are various factors which do not permit the assessee to take the Cenvat credit on the inputs on capital goods immediately, such as, duty paying documents are available, the goods are as per the required specification, genuineness of the duty paying document is tested as required under the rules, etc. On account of such factors, the assessee could not avail of the Cenvat credit immediately. It was, in fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber, 2005 is not justified and not backed by law. Apparently the Lower Adjudicating Authority has not disputed the admissibility of CENVAT credit or otherwise on the invoices pertaining to month of March, 2005 to November 2005 which is outside the scope of present appeal. So long as the conditions of the said Notification fulfilled and the credit balance was NIL on the last date of December 2005 the amount paid in P.L.A. during December are liable to be refunded in full. This view is confirmed by the Tribunal in the impugned judgment. 7. In our opinion, the above view does not suffer from any illegality. What para 1A introduced by way of amendment in the exemption notification under consideration required was the assessee to make fir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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