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TMI Blog2024 (6) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... ital goods in the month May 2012 instead of April 2012 in this case, did not affect the overall entitlement of refund for the relevant financial year. Accordingly, the recovery of excess refund of Rs.3,52,093 vide the impugned order is not sustainable and hence the same is set aside. Appeal allowed. - HON BLE MR. ASHOK JINDAL MEMBER (JUDICIAL) And HON BLE MR. K. ANPAZHAKAN MEMBER (TECHNICAL) Shri R. S. Bajaj, Consultant for the Appellant Shri K. Chowdhury, Authorized Representative for the Respondent ORDER PER K. ANPAZHAKAN : M/s. North East Roofing Pvt. Ltd. (the appellant) is engaged in the manufacture of excisable goods viz. Corrugated Sheets, Asbestos Cement Plain Sheets and Accessories classifiable under sub-heading no. 6811 4010, 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cenvat credit attributable to capital goods in April, 2012, the amount of refund sanctioned would have remained the same, because the said refund was granted subject to the ceiling by way of percentage of value addition i.e. 36%. Thus, there was no impact on the amount refundable to the appellant. 3.1. The statutory provision of Rule 4(2) of the said Cenvat Credit Rules allows the appellant to avail the balance 50% cenvat credit on capital goods in the succeeding financial year. It cannot be insisted upon the appellant to avail the credit of balance cenvat credit attributable to capital goods in the month of April itself, of the succeeding financial year. Thus, the appellant contended that the allegation of the department is contrary to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they prayed for setting aside the impugned order and allow their appeal. 4. The Ld. A.R. reiterated the findings in the impugned order. 5. Heard both sides and perused the appeal documents. 6. We observe that the appellant had availed balance 50% of the Cenvat credit on captial goods in the month of May, 2012. The department contended that the appellant ought to have availed the said balance 50% of the cenvat credit of Rs. 3,52,093 in the month of April, 2012 itself. Since the appellant has availed the cenvat credit in the month of May 2012, it was alleged that the refund granted to them in the month of April 2012 was in excess of its entitlement. 6.1. We observe that Rule 4(2) of the said Cenvat Credit Rules allows the appellant to avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant has been sanctioned excess refund in the month of April 2012 because they have not availed the balance 50% of the capital goods credit in the month of April 2012 itself. 6.4. In view of the above, we hold that the delayed availment of cenvat credit of the balance 50% excise duty suffered on capital goods in the month May 2012 instead of April 2012 in this case, did not affect the overall entitlement of refund for the relevant financial year. Accordingly, we hold that the recovery of excess refund of Rs.3,52,093 vide the impugned order is not sustainable and hence we set aside the same. 7. In view of the above discussion, we set aside the impugned order and allow the appeal filed by the appellant with consequential relief, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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