2009 (1) TMI 520 - HC - Central Excise

Cenvat credit - credits were taken without satisfying the procedure provided under Rule 57R(3) of the Central Excise Rules, 1944 and the assessee was required to show cause as to why the said credits be not disallowed - Assessee filed its reply, inter alia, contending that all the capital goods in question were directly purchased or imported by it on principal to principal basis and were not acquired by it on lease, hire-purchase or loan agreement nor these were acquired by any financing company and it being the owner of the said goods the procedure under Rule 57R(3) of the Central Excise Rules, 1944 (hereinafter referred to as the Rules ) is not required to be followed - Held that - provision of Rule 57R(3) of the Rules is required to be followed even when the capital goods were acquired by the assessee under a loan agreement from the bank, decision in favour of the revenue and against the assessee.

Summary

Issues:
1. Interpretation of Rule 57R(3) of the Central Excise Rules, 1944 regarding the allowability of Modvat credit on capital goods.
2. Whether the procedure under Rule 57R(3) must be followed irrespective of ownership of the goods.
3. Application of Rule 57R(3) in cases where capital goods are directly purchased by the assessee but financed through a loan agreement with a bank.

Analysis:

Issue 1:
The case involved the appellant, a company, purchasing capital goods from indigenous and foreign suppliers, availing Modvat credits on Central Excise duties paid. A show cause notice was issued alleging non-compliance with Rule 57R(3) of the Central Excise Rules, 1944. The Commissioner (Appeals) ruled in favor of the appellant, stating that the ownership of the goods exempts the appellant from following the said procedure. However, the Customs, Excise & Gold (Control) Appellate Tribunal disagreed, emphasizing the necessity of compliance regardless of ownership. The High Court upheld this view, stating that a financial arrangement with banks for financing capital goods does not alter ownership, necessitating adherence to Rule 57R(3).

Issue 2:
The primary contention was whether Rule 57R(3) applies irrespective of ownership. The appellant argued that being the owner of the capital goods exempted them from following the procedure. The High Court disagreed, emphasizing that a financial arrangement with banks for capital goods financing does not transfer ownership, as hypothecation is merely security for loan repayment. The Court held that compliance with Rule 57R(3) is mandatory in such cases, even when goods are acquired through a loan agreement.

Issue 3:
The appellant relied on a Gujarat High Court judgment regarding hypothecation not affecting ownership. However, the High Court distinguished this case, stating that it did not apply to the present scenario. The Court clarified that the focus was on the necessity of following Rule 57R(3) in cases where capital goods are financed through a loan agreement with banks. The judgment favored the revenue, emphasizing the importance of procedural compliance in such financial arrangements.

In conclusion, the High Court ruled in favor of the revenue, affirming the applicability of Rule 57R(3) of the Central Excise Rules, 1944 in cases where capital goods are financed through loan agreements, irrespective of ownership. The judgment highlighted the distinction between ownership and financial arrangements, emphasizing the need for procedural adherence in such transactions.