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TMI Blog2017 (3) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... r alleged in the SCN nor raised in any other manner would result into exceeding the brief which is not permitted - the impugned order is set aside to the extent of denial of credit beyond one year period - appeal allowed - decided partly in favor of appellant. - Appeal No. E/1878/2010 - ORDER No. A/10535/2017 - Dated:- 1-2-2017 - Dr. D.M. Misra, Hon'ble Member (Judicial) For Assessee : Shri Dhaval Shah, Advocate For Revenue : Shri S Chitkara, Authorised Representative ORDER Per : Dr D.M. Misra, This appeal is filed against OIO-7/DEMAND/COMMR-I/2010 dt 31/08/2010 passed by the Commissioner of Central Excise, Customs and Service Tax VADODARA-I 2. The brief facts of the case are that the appellants are engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, it could not pick up Cenvat Credit of 4% SAD paid as additional duty of Customs. In support, he has referred to the correspondences with the Dept. (pages 88 to 99 of the Appeal book). It is his contention that there was no intention whatsoever in not availing the Cenvat Credit only on ne of the duty component ie. 4% SAD, whereas they had availed credit on the CVD paid on the same goods received during the said period. It is his contention that the principles of reasonableness cannot applicable to their case as the appellant took the credit on 4% SAD immediately after their SAP system became functional i.e., in November 2008. Therefore, it is his contention that there was no delay in availing the credit of 4% of SAD. However, assumin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit, during the normal period. It is his contention that irrespective of the reason whether the Appellants SAP system was in place or otherwise, the Cenvat Credit of 4% SAD is admissible only, if it is taken within a reasonable period of time ie., one year. In support the Ld Advocate referred to the decision of the Tribunal in the case of CCE, Hyderabad I vs Mold-Tek Technologies Ltd -2006(205)ELT.415 (Tri.Bang.) 6. Heard both sides and perused the records. I find the short issue needs to be addressed is: whether the appellants are entitled to avail the entire amount of Cenvat Credit of ₹ 61,93,971/- availed for the period between April 2006 Nov. 2008 or a portion of the said credit ie,. ₹ 16,76,473/- for a period of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay in functioning of SAP software. The Ld Advocate, also submits that in the show cause notice even though the eligibility of Cenvat credit was proposed to be denied solely on this ground, but in the impugned order, the Ld Commissioner exceeded the brief by examining the eligibility of Cenvat Credit in light of the Notification 102/2007-CUS dt 14.9.2007. I find force in the argument of the Ld Advocate after reading the show cause notice dtd 24.11.2011. In the show cause notice the only ground on which the Cenvat Credit was proposed to be denied and recovery proceeding initiated was that non availment of Cenvat Credit immediately after receipt of goods in their factory. In my view, raising the issue which is neither alleged in the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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