2017 (12) TMI 822

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....ent case are that the appellant is a service provider for management, maintenance or repair service and other services. It was seen that they have availed CENVAT credit of Central Excise duties paid on capital goods in full immediately on receipt of the goods in their premises. As per the provisions of Rule 4(2)(a) of the CENVAT Credit Rules, 2004 (CCR), the CENVAT credit in respect of capital goods received in factory or in the premises of the provider of output services at any point of time in a given financial year shall be taken only for an amount not exceeding fifty percent of the duty paid on such capital goods in the same financial year. The appellant has instead of availing 50% in the same financial year and remaining 50% in the sub....

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....ant submitted that the impugned order is not sustainable in law as the same is opposed to the binding judicial precedent and contrary to the basic legal provision. She further submitted that the appellant has satisfied the objective behind Rule 4(2) of the CCR and is not liable to reverse CENVAT credit on capital goods. She further submitted that the intention behind the provisions in Rule 4(2) is not to restrict taking the credit but utilisation thereof and for this submission, she relied upon the following decisions:- i. Bombay Paints Vs. CCE, Mumbai [2015(326) ELT 335 (Tri. Mum.)] ii. Madras Cement Ltd. Vs. CCE, Hyderabad [2016(336) ELT 175 (Tri. Hyd.)] iii. CCE, Raipur Vs. Sharada Energy & Minerals Ltd. [2013(291) ELT 404 (Tri.....

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....rds "cenvat credit taken or utilised wrongly" is not available to the appellants since the notification is operational only from 01/04/2012 and does not have retrospective effect. He further submitted that the appellant's claim that they have not utilised the credit is not supported by documentary evidence. 5. After considering the submissions of both parties and perusal of material on record, I find that the appellant has proved before me by way of documentary evidence that they have only taken 50% of the credit during the first year and they have also submitted the reconciliation statement to prove the same. Further I also find that the intention behind the provision of Rule 4(2) is not to restrict taking credit but utilisation thereof....