PREMIER CRYOGENICS LIMITED Vs. COMMISSIONER CENTRAL EXCISE AND SERVICE TAX CENTRAL EXCISE AND SERVICE TAX, GUWAHATI DIVISION

JUDGEMENT

(1.) Heard Mr. D. Saraf, learned counsel appearing for the appellant. Also heard Mr. S. C. Keyal, learned counsel representing the respondent.

(2.) This appeal has been preferred by the assessee (M/S Premier Cryogenics Limited) assailing the order dtd. 2/5/2018 passed by the learned Central Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata in Excise Appeal No.E/75264/15, partly allowing the appeal filed by the assessee against the order dtd. 25/11/2014 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Guwahati.

(3.) The facts of the case, in a nutshell, are that the appellant herein is engaged in the business of manufacture of oxygen/nitrogen and is registered under the Central Excise Department vide Registration No.AABCP6683NXM001 and Service Tax Registration No.AABCP6683NXM001 having its manufacturing unit at Saukuchi, Lokhra Road, Guwahati, Assam. The manufacturing unit of the appellant commenced its commercial production on 26/3/2004. Under the Notification No.32/99-CE dtd. 8/7/1999 issued by the Central Government, the appellant was entitled to exemption on the credit of CENVAT including exemption on capital expenditure. As per the projection made in this appeal, the appellant had procured capital goods from M/S INOX Air Products Ltd. for use in the factory during the year 2007-08. However, the plants and machineries so procured during the year 2007-08 were not installed/put to use in the factory until the year 2011. The assessee had availed CENVAT credit amounting to a sum of Rs.22,93,920.00 during the financial year 2010-11 and 2011-12 on capital goods received during the months of November, 2007, December, 2007 and January, 2008. According to the Revenue, CENVAT credit amounting to Rs.22,93,920.00 against capital goods was available to the assessee only during the financial years 2007-08 and 2008-09 in terms of Rule 4(2) of the Cenvat Credit Rules. Therefore, the assessee could have utilized the Cenvat Credit upto 50% towards payment of Central excise duty only in those financial years and the balance 50% could have been used in the subsequent financial years.