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TMI Blog2009 (2) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods during the year 2003-04. – held that - CBEC Circular dated 3-4-2000 cannot be considered as beneficial to the assessee as it nowhere holds that rest 50% credit can be availed in subsequent financial year even before installation of the capital goods - , it has been held that 50% of the balance credit cannot be allowed without installation/use of the goods in the financial year during which it is claimed - interest of ₹ 4,43,984/- is payable – penalty not to be imposed. - E/196/2008 - A/84/2009-WZB/C-IV/SMB - Dated:- 9-2-2009 - Shri A.K. Srivastava, Member (T) Shri Kishori Lal, DR, for the Appellant. Shri Purnima L. Advocate, for the Respondent. [Order].- This is the appeal filed by the Revenue. 2. Heard bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d alongwith the imposition of equal penalty under Rule 13 ibid. 3.4 In appeal against the said Order-in-Original 26-3-2007, the Commissioner (Appeals), vide the impugned Order-in-Appeal dated 21-1-2008, set aside the demand and allowed the appeal on the following grounds. (i) That the issue involved is covered by Tribunal's decisions in Ballarpur Industries case reported in 2003 (156) E.L.T. 423 (Tri.-Mumbai) and Ispat Industries case reported in 2006 (199) E.L.T. 509 (Tri.-Mumbai). (ii) That there is no specific provision in the Cenvat Rules that the capital goods should be installed and used before balance credit can be taken. (iii) That the CBEC Circular No. B-4/7/2000-TRU dated 3-4-2000 also explicitly lays down that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory materials, moulds and dies and goods falling under [heading 6805, grinding wheels and the like, and parts thereof falling under heading 6804] of the First Schedule to the Excise Tariff Act, are in the possession of the manufacturer of final products, or provider of output service in such subsequent years". The present rule in force shows only possession is necessary not use. Meaning thereby, that at the relevant point of time both possession use were essential conditions. 6. Further, the words "in any financial year subsequent to the financial year" implies that the second 50% credit can be availed not necessarily in the first subsequent year but any of the subsequent year. Thus it shows the intention of the Govt. with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of the assessee" and the words "possession and use of" have to be read together, which would mean that the goods are still available with the assessee for use in the manufacture of the final products. The Tribunal held that as long as the capital goods are lying in the factory meant for installation and future use in the manufacture or the final product, they have to be treated as in possession and use of manufacturer and denial of 50% credit is not sustainable. This decision of the Tribunal has not been accepted by the Revenue and an appeal has been filed before the Hon'ble Bombay High Court having its lodging No. 354/06 dated 8-11-2006. When the decision is under challenge, its correctness is in jeopardy and it does not have precedent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66 (Tri.-Mumbai) in which it has been held that the subsequent Circular F. No. 267/26/2006-CX8, dated 28-4-2006 issued by the CBEC restricting availment of credit of rest 50% only after installation of the capital goods is oppressive in nature and should be applied prospectively and the former CBEC Circular F. No. B-4/7/2000-TRU dated 3-4-2000 permitting availment of 50% Cenvat Credit as and when capital goods are received in the factory and rest 50% in the next financial year is a beneficial one and should be applied retrospectively. But as I have already noted in para 7 that the CBEC Circular dated 3-4-2000 cannot be considered as beneficial to the assessee as it nowhere holds that rest 50% credit can be availed in subsequent financial ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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