2011 (5) TMI 938 - AT - Central Excise

MODVAT credit - diesel generating set - removal after use - whether the appellant was required to reverse the MODVAT credit availed on a diesel generating set (capital goods) when it was disposed of by way of sale on 12.11.2004? - Held that - On a perusal of the Tribunal s judgment in Cummins India case 2007 (3) TMI 589 - CESTAT, MUMBAI , we find that the payment of duty by the assessee on the transaction value of old / used capital goods (on which CENVAT credit had been availed) was accepted by the Tribunal - credit allowed - appeal allowed - decided in favor of appellant.

Summary

Issues:
Whether the appellant was required to reverse the MODVAT credit availed on a diesel generating set (capital goods) when disposed of by way of sale.

Analysis:
In this appeal, the main issue was whether the appellant had to reverse the MODVAT credit availed on a diesel generating set when it was sold. The appellant had taken MODVAT credit on the duty paid on the capital goods by the supplier in 1995 and later disposed of it in 2004 by paying duty on its transaction value. The department demanded the differential duty between the credit taken and the duty paid, which was confirmed by the adjudicating authority and upheld by the Commissioner (A), leading to the appellant's appeal.

The appellant's consultant argued that the issue had been settled in previous cases, citing decisions such as Greenply Industries Ltd. Vs. CCE, Jaipur and Cummins India Ltd. Vs. CCE, Pune. The consultant also mentioned that the appeal filed by CCE, Pune against the decision in Cummins India Ltd. was dismissed by the Bombay High Court. On the other hand, the SDR submitted that the issue had been referred to a Larger Bench in another case.

After considering the arguments, the Tribunal found that the issue had been decided against the Revenue by the Bombay High Court in a previous case. The High Court's judgment upheld the Tribunal's decision regarding the payment of duty on the transaction value of old or used capital goods on which CENVAT credit had been availed. The Tribunal noted that the issue referred in another case was not identical, and the High Court's decision favored the present appellant. Consequently, the Tribunal allowed the appeal with any consequential relief.

In conclusion, the Tribunal's decision was based on the precedent set by the Bombay High Court, which supported the appellant's position regarding the payment of duty on used capital goods disposed of by them. The appeal was allowed in favor of the appellant with any necessary relief.