2008 (10) TMI 405 - AT - Central Excise

Summary

Issues involved: Appeal filed by Revenue challenging clearance of used capital goods as 'scrap' without payment of entire credit availed initially.

Summary:
1. The appeal was filed by the Revenue challenging the clearance of used capital goods as 'scrap' without paying the entire credit initially availed by the company. The authorities demanded the difference between the credit availed and the duty paid on clearance of the goods. The Commissioner (Appeals) allowed the appeal filed by the company, leading to the Revenue's appeal seeking to restore the original authority's order.

2. The main argument presented was that the capital goods had been removed 'as such' and, according to Rule 3(5) of Cenvat Credit Rules, 2004, the assessee was required to pay the credit originally availed in such cases. The Revenue contended that the impugned order was not consistent with statutory provisions and needed to be set aside.

3. Upon considering the case records and submissions, it was found that the Commissioner (Appeals) relied on a decision of the Bangalore Bench of the Tribunal, which clarified that Rule 3(5) applied only to capital goods removed 'as such' and not to used cenvated capital goods. As the impugned goods were cleared after being used for about 8 years, they were not considered capital goods 'as such'. Since the Tribunal's decision had not been unsettled by a superior court, the appeal filed by the Revenue was dismissed for lacking merit.