JUDGMENT N. Kumar, J.—There is a delay of 5 days in preferring CEA No. 23/2009. The application is not opposed. Accepting the cause shown in the affidavit filed in support of the application for condonation of delay, delay of 5 days in filing the appeal is condoned. Misc. Civil No. 2311/2009 is allowed. 2. The revenue has preferred these appeals against the order passed by the Tribunal which has set aside the Duties on the ground that, the assessee has not availed Cenvat credit in respect of the work in progress. The assessee had shown the work in progress in the balance sheets which is duly certified by the Chartered Accountant. 3. It is the case of the assessee that, there was no work in progress at all. Therefore, he did not avail any credit in respect of the value of the work in progress which was not in existence. It was done only to paint a rosy picture to the financial institutions. However, the parties proceed on the assumption that, once the work in progress is shown in the balance sheet which is duly certified by the chartered accountant, there is a presumption that the assessee has availed Cenvat credit in respect of the said input. When the assessee changed over, started availing full exemption under the SSA scheme, he ought to have reversed the said Cenvat credit which he has not done and therefore, a demand came to be issued which was held to be valid. The Tribunal did not agree with the said assessment. It held, when there is no evidence that there was work in progress and there was no allegation that subsequently the assessee had utilized the so called credit attributed to the work in progress, and as a matter of fact when the assessee has not availed any credit in respect of work in progress, the question of reversing would not arise. In fact it took note of the decision of the Tribunal in the case of the assessee itself where it was held that when there are credit lapses at the end of the financial year, there is no question of demanding any duty and therefore, it held, the payment of duties is without any basis and accordingly, it set aside the said order. Consequently, it also set aside the order in respect of the penalty. Consequently, it also set aside the order in respect of the penalty. Being aggrieved by the same, revenue is in appeal. 4. This appeal came to be admitted to consider the following substantial questions of law: (a) Whether the order of the CESTAT is legally sustainable in allowing the claim of the assessee despite the fact that there was work in progress and the assessee has failed to disclose the true facts to the Department with an intention to avail the benefit of Cenvat credit under Cenvat Credit Rules, 2001/Cenvat Credit Rules, 2002? (b) Whether the availment of cenvat credit is available to the assessee in respect of inputs involved in the work-in-progress while opting out from Cenvat Credit Scheme to avail the benefit of SSI exemption? (c) Whether the order of CESTAT is legally sustainable in rejecting the appeal of the Department/Appellant by merely relying on its earlier decision, without considering and discussing the facts and circumstances of the case ? (d) Whether the expression "inputs lying in stock" can be interpreted to include "inputs in process lying in stock" (prior to the amendment to Rule 9(2) of the Cenvat Credit Rules, 2002)? 5. Learned counsel for the revenue assailing the order of the Tribunal contended that, when once in the audited balance sheet, it is mentioned that there was work in progress, the contention of the assessee that, in fact there was no work in progress at all cannot be accepted and the raw-material which was lying in the factory and which was in the process of being manufactured, the Cenvat credit has been availed, admittedly, which was has not been reversed and therefore, the demand made by the department was valid and legal and the Tribunal was in error in setting aside the same. 6. The facts are not in dispute. The assessee who had earlier the benefit of Cenvat credit under the Central Excise Act opted for exemption under the SSI scheme. It is true that he had shown work in progress in the balance sheet which in fully audited and certified, but it is his specific case, though it was shown in the balance sheet, correspondingly no Cenvat credit was availed as factually there was no work in progress. Therefore, they did not reverse the said entry. It is true that he had shown work in progress in the balance sheet which in fully audited and certified, but it is his specific case, though it was shown in the balance sheet, correspondingly no Cenvat credit was availed as factually there was no work in progress. Therefore, they did not reverse the said entry. The Tribunal considering all the material on record has recorded a categorical finding of fact that there is no evidence that there was no work in progress. There was no allegation that the assessee had utilized the so called credit attributable to the work in progress and the question of reversing the same would not arise. Therefore, it held, the order passed by the assessing authority and the appellate authority remains. Accordingly, it set aside the order. We do not see any error committed by the Tribunal in passing the said order. 7. Accordingly, all the substantial questions of the law framed are answered in favour of the assessee and against the revenue.