2013 (2) TMI 694

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....h ought to have been taken and utilized in the month of November 2005 as per the provisions of the Notification No. 39/2001-C.E., dated 31-7-2001? (ii)    Whether by holding supra, the Tribunal is right in reading down the provisions of the Notification No. 39/2001-C.E., dated 31-7-2001, as amended, and thereby rendering the said provisions redundant?" 2. Briefly stated, the issue is that the respondent assessee while availing duty exemption for industry situated in Kutch area under Notification No. 39/2001, dated 31-7-2001, had claimed refund of a sum of Rs. 4,29,44,310/-. The Adjudicating Officer restricted such claim to Rs. 60,50,093 and disallowed the remaining amount of refund claim of Rs. 3,68,94,217/-. Aggri....

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....ted during the months of March to November 2005, instead did so in the month of December 2005 and the short fall was paid through personal ledger account which was in breach of the above noted condition. Before the Authority, the assessee had, however, pointed out that there are various factors which do not permit the assessee to take the Cenvat credit on the inputs on capital goods immediately, such as, duty paying documents are available, the goods are as per the required specification, genuineness of the duty paying document is tested as required under the rules, etc. On account of such factors, the assessee could not avail of the Cenvat credit immediately. It was, in fact, stated that for the period between March 2005 and November 2005,....

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....udicating Authority has not disputed the admissibility of CENVAT credit or otherwise on the invoices pertaining to month of March, 2005 to November 2005 which is outside the scope of present appeal. So long as the conditions of the said Notification fulfilled and the credit balance was NIL on the last date of December 2005 the amount paid in P.L.A. during December are liable to be refunded in full." This view is confirmed by the Tribunal in the impugned judgment. 7. In our opinion, the above view does not suffer from any illegality. What para 1A introduced by way of amendment in the exemption notification under consideration required was the assessee to make first utilization of the whole of the Cenvat credit available on the las....