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TMI Blog2003 (8) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... nal product at the third phase is dutiable. According to us, decision of a learned Single Member in Kailash Auto Builders Ltd. vs. CCE (A), Bangalore 2001 (47) RLT 950 (CEGAT-Ban.) relied on by the respondent-assessee is more akin to the facts of the present case. It was held therein that there is no time limit for utilising the credit and merely because there was no dutiable items, which were required to be cleared, on payment of duty on the date when the capital goods credit was taken, that credit could not be denied. We, therefore, agree with the learned Commissioner (Appeals) that the assessee is entitled to avail the credit on the capital goods installed during implementation of second phase of the project when the composite mill had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , till implementation of the third phase, namely, the fabric processing. The assessee submitted the required declaration under Rule 57T of the Central Excise Rules with the clear intention that it shall be availing the credit on implementation of the third phase as the final product of third phase was dutiable. On implementation of the third phase it becomes a composite mill and therefore, entitled to avail of the modvat credit facility which it kept in abeyance during the second phase of manufacturing operation. The assessee sent a letter dated 2.3.2000 to the Assistant Commissioner referring to the above facts and details regarding their process at different phases and requested for permission to utilise the credit of modvat amount now ly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authority there is no time limit for availing credit under the modvat scheme on capital goods. The above position is made clear, according to the appellate authority, by the Circular No. 88/99/94-CX. dated 26.12.94 [reported in 1995 (6) RLT M50] issued by the Central Board of Excise and Customs. The circular provided that declarations under Rule 57T should continue to be filed by the appellants irrespective of the fact that their factory has not come into existence and/or after got registered and that the credit on the capital goods can be availed only after factory commences production and it is registered. A mere reference to grey fabric as final product in the declaration given at the time of second phase of the project can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 57Q would not arise. The availability of modvat credit has to be determined at the time when the goods are received in the factory and if no modvat credit was available at that time, the question of subsequently making available any modvat credit would not arise. In the present case, we are concerned with a composite mill and the final product at the third phase is dutiable. According to us, decision of a learned Single Member in Kailash Auto Builders Ltd. vs. CCE (A), Bangalore 2001 (47) RLT 950 (CEGAT-Ban.) relied on by the respondent-assessee is more akin to the facts of the present case. It was held therein that there is no time limit for utilising the credit and merely because there was no dutiable items, which were require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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