2015 (2) TMI 342

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....red with the service tax authorities for rendering services under the category of Port Services amongst others. A Show Cause Notice dtd 13.10.2011 was issued proposing to deny cenvat credit of Rs. 59,82,52,117/- alongwith interest and penalty for the period 2006-07 and 2007-08. It has been alleged that the respondent availed the cenvat credit and utilised before actual installation of the capital goods. It has been further alleged that cenvat credit would be allowed only in respect of the service tax which is leviable under section 66 of the Finance Act 1994 and therefore the service tax paid under section 66 A of the said Act is not qualified to avail the cenvat credit as the same has not been specified under Rule 3 of cenvat credit Rule 2....

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....ter hearing both the sides and on perusal of records, we find that the show cause notice was issued to deny the cenvat credit on two grounds as mentioned above. CBEC vide circular No B-4/7/2000 TRU dated 3.4.2000 (Para 8 ) clarified as under : In the case of capital goods, the CENVAT rules do not provide installation of capital goods as a pre-requisite for taking CENVAT credit. The credit can be taken as and when the capital goods are received in the factory. For such capital goods which were received prior to 1.4.2000 but not installed upto 1.4.2000 also, the CENVAT credit would also be admissible. It may, however, be noted that in respect of all capital goods whether received on or after 1.4.2000 or those that were received prior to 1.4.....

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....requirement that the goods were in the possession and use of the manufacturer in the year in which the balance of credit was availed of has been fulfilled. 7. For the purpose proper appreciation of the case, the relevant portions of the finding of the adjudicating authority are reproduced below: 9.3 Thereafter vide section 71 of the Finance Act, 2011 (8 of 2011), a new clause was inserted under sub-rule (1) of Rule 3 of the CENVAT Credit Rules, 2004, retrospectively with effect from 18.4.2006 thereby allowing credit of Service Tax Paid under Section 66A of the finance Act, 1994 (and it received the Presidents assent on 8th April. 2011). The relevant portion of the Finance Bill 2011 and the Section 71 of the Finance Act, 2011is reproduced ....

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.... the provisions as amended by sub section (1) shall be deemed to be and deemed always to have been, for all purposes, as validity and effectively taken or done as if the amendments made by sub-section (1) had been in force at all material times. (3) For the purposes of sub-section (1) the Central government shall have and shall be deemed to have the power to make with retrospective effect as if the Central Government had the power to make rules under section 37 of the Central excise Act, 1944 (1 of 1944), retrospectively, at all material times. 10. In view of retrospective amendment made to sub-rule (1) of Rule 3 of Cenvat Credit Rules, 2004 by inserting clause (ixa) with effect from 18.4.2006, I conclude that the notice is eligible to ta....