2011 (4) TMI 171 - HC - Central Excise

Cenvat credit - Rule 3(5) of the Cenvat Credit Rules, 2004 - Clearance of capital goods after use for more than 2 years - The amount involved in the appeal is around Rs. 34,000/- and as per the latest policy of the Department, the appeals are to be filed in such matters if valuation involved is Rs. 2 lacs or more - Decided in the favour of the assessee

Summary

Issues:
1. Appeal by revenue under Section 35G of the Central Excise Act against the order of the Customs, Excise & Service Tax Appellate Tribunal.
2. Substantial questions of law raised regarding the treatment of Generator Set as capital goods under Rule 3(5) of the Cenvat Credit Rules, 2004.
3. Requirement to reverse/paid amount of credit taken at the time of receipt of capital goods under Rule 3(5) of the Cenvat Credit Rules, 2004.
4. Consideration of the applicability of Rule 3(5) of Cenvat Credit Rules, 2004 during the material period.

Analysis:
The judgment pertains to an appeal by the revenue under Section 35G of the Central Excise Act against the order of the Customs, Excise & Service Tax Appellate Tribunal. The substantial questions of law raised in the appeal revolve around the treatment of a Generator Set as capital goods under Rule 3(5) of the Cenvat Credit Rules, 2004. The first issue questions whether the Tribunal was correct in rejecting the appeal on the grounds that the Generator Set cleared after more than 2 years of use could not be considered as clearance of capital goods "as such." The second issue addresses whether the amount of credit taken at the time of receiving capital goods needed to be reversed or paid in accordance with Rule 3(5) of the Cenvat Credit Rules, 2004, especially when there was no provision for duty payment on the depreciated value. The third issue concerns the Tribunal's decision not to uphold the provisions of Rule 3(5) of the Cenvat Credit Rules, 2004 during the material period, which required the reversal of an equal amount of Cenvat credit taken at the time of receiving capital goods when cleared as such.

During the proceedings, the learned counsel for the revenue acknowledged that the amount involved in the appeal was approximately Rs. 34,000, falling below the threshold set by the Department's latest policy for filing appeals in matters where the valuation exceeds Rs. 2 lakhs. Consequently, the Court dismissed the appeal based on the amount involved and the Department's policy guidelines. The judgment highlights the importance of complying with the statutory provisions and thresholds set by the relevant authorities in determining the filing and continuation of appeals in taxation matters.