2018 (8) TMI 417

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....liquefied gas (Chapter 870490490), Cryo Container (Chapter 96170012) etc. of the First Schedule to the Central Excise Tariff Act, 1985. They are availing the facility of Cenvat Credit on inputs, capital goods and input service under the provision of Central Excise Rules, 2004. During the course of EA-2000 Audit and on verification of Cenvat Credit account/register it was observed that the appellant had availed cenvat credit total amounting to Rs. 4,95,51,795/- and Rs. 1,07,99,840/- in the months of February 2014 to March 2014. On scrutiny of cenvat register maintained by the appellant wherein certain discrepancies noticed as in the column of type of document they made entries as B/L and B/E, in the column of number and date of document for ....

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....upon verification report obtained by him from the jurisdictional range office in respect of records and bills of entry and goods receipt note submitted by the appellant along with reply. Being aggrieved by the said order in original which is impugned herein, the appellant filed the present appeal. 2. Sh. J. C. Patel, Ld. Counsel appearing on behalf of the appellant submits that as regard the delay in taking the credit it is not intentional as earlier there was a board Circular whereby it was clarified that the credit in respect of duty debited in various duty credit scrips was not available under the same belief the credit was not taken however, subsequently when it was noticed that the credit is admissible on the duty debited under vari....

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....nder Section 11A(1) of Central Excise Act, 1944. He submits that there was a correspondence between the department and the appellant with regard to the credit taken and the appellant vide letter dated 17.04.2015 explained the reason for not taking the credit at the time of import and receipt of the inputs and for taking the credit subsequently. Therefore, there is no suppression of fact on the part of the appellant. Hence, entire demand is time barred. In support of his above submission, he placed reliance on the following judgments: Steel Authority of India Ltd. 2013 (287) ELT 321 SGS India P. Ltd. 2011 (270) ELT 115 Transformerls & Rectifiers 2010 (262) ELT 983 CCE vs Pierlite India Ltd. 2011 (273) ELT ....

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.... prescribed for taking the credit. In our view if we draw the interpretation of the term 'may be taken immediately', it is a facility provided to the assessee that he needs not to wait for use of the material and removal of the finished goods on payment of duty for taking the credit, therefore, the intention of this provision is that after receipt of the inputs even though it is lying in the factory, not used in the manufacture of final product and final product was not cleared on payment of duty, the credit can be taken immediately on receipt of the inputs. There is no bar provided in the Cenvat Credit Rules that within how much period credit should be taken. The limitation was brought in the statute by way of 3rd Proviso to Rule 4(1) of C....

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....ill of entries. However, in para 15.2 he contended that in absence of original transport document namely, Lorry receipt it was not possible to ascertain the actual receipt of the goods/ inputs on which cenvat credit is under dispute. In this regard, the appellant submitted before this Tribunal all the copies of Lorry Receipts. The Ld. Counsel invited out attention to the goods receipt note which bears the detail of transport such as Lorry Receipt number etc. Since these records were not before the Adjudicating Authority, he did not verify regarding receipt of the inputs. We find that Ld. Commissioner gravely erred for the reason that if at all he wanted to see the LRs, he could have called for from the appellant which he failed to do so. Ac....