TaxTMI 
TaxTMI 
2009 (8) TMI 1044
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....985 and are availing Cenvat credit of duty on inputs and capital goods under the Cenvat Credit Rules, 2004. The assessees have, during the period from 1-4-2000 to 1-4-2005 initially availed Cenvat credit on the goods falling under chapters 72 & 73 of the Schedule, to the Central Excise Tariff Act, 1985 under the head 'capital goods' and reversed the credit under protest. The assessees vide their letter Ref. UTCL/ACTS/VJ/06-07/291 dated 21st April, 2006 have enclosed the details of Cenvat credit availed in respect of the goods falling under Chapters 72 & 73 of the Schedule to the Central Excise Tariff Act, 1985 and the usage particulars of those goods for the period from April 2000 to March 2006. They have stated that as per the decision of ....
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....notices considering that the Cenvat credit availed on the goods falling under Chapters 72 & 73 of the Schedule to the CETA 1985, as "capital goods" is admissible as per the usage particular furnished as well as based on various decisions pronounced by the Hon'ble CESTAT in this regard. M/s. Ultra Tech Cement Ltd., vide their letter Ref. UTCL/ACTS/VJ/06-07/291, dated 14th November 2006 have intimated that based on the Joint Commissioner, Central Excise, Tirupati's Order-in-Original No. 14/2006 (CE), dated 28-9-2006, they propose to take re-credit of the amounts which were reversed under protest for the period from 1-4-2000 to 1-4-2006 during the month of November 2006 to the tune of Rs 75 lakhs. The assessees have taken re-credit of duty of ....
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....ch have been initiated against them and the proceedings were dropped. Consequent to dropping of such proceedings appellants have taken the credit. Adjudicating Authority did not accept the contentions of the appellants and had held that the appellant has taken wrong credit and passed the following order: "(i) I Order recovery of the Cenvat credit amounting to Rs. 82,45,876/- towards duty and Rs. 21,510/- towards Education Cess, irregularly availed and utilized by M/s. Ultratech Cement Ltd., A.P. Cement Works Bhogasamudram Village, Tadipatri Mandal under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A of Central Excise Act, 1944; (ii) I order recovery of interest at appropriate rate from M/s. UltraTech Cement Limited on the amou....
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....OIO culminating in their favour. The decision of the Hon'ble High Court of Gujarat in the case of Shyam Textile Mills and Anr v. UOI & Ors - 2005 (67) RLT 488 (Guj.) will squarely cover the issue. He would also submit that in an identical matter of RINL v. CCE, Visak (I), this bench of the Tribunal vide Final Order No. 615/07 dated 4-6-07 upheld the entitlement of the assessee to the credit of amount lying to their credit. It is his submission that there is no dispute about the entitlement of the Cenvat credit and there is also no dispute that the original credit was raised by the appellants based on duty paying documents. It is also his submission that the appellants have been intimating the department about availment of credit consequent ....
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....rds the entitlement of credit on the goods which were considered by them as capital goods, it is undisputed that the lower authorities were issuing show cause notices to the appellant for non-eligibility of credit on MS sheets, plates, angles etc., as capital goods. It is undisputed that the issue of their eligibility to take Cenvat credit on these items is settled in their favour by the order-in-original dated 28-9-06. It is also on record that the revenue has not challenged the said OIO. It is also undisputed that during the pendency of the proceedings which culminated in OIO dated 28-9-06, the appellants were taking Cenvat credit and reversing the same under protest due to the reason that show cause notices were issued. We find that the ....
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....ot be recovered from the petitioner. It is the aforesaid show cause notice which is under challenge in this petition. 3. In response to the notice, affidavit-in-reply has been filed by Dr. A.L. Gupta, Assistant Commissioner of Central Excise, Division-IV, Ahmedabad opposing the petitioner and submitting that merely on the basis of the order of the appellate authority, the petitioner could not have suo motu utilized the amount lying to its credit in the deemed credit register. There is no provision or such suo motu refund. Secondly, it is submitted that the order of Commissioner (Appeals) is already appealed against by the department before Customs, Excise and Service Tax Appellate Tribunal. 4. ......... 5. Having heard the learned counse....