2011 (1) TMI 1077 - HC - Central Excise

Cenvat credit on capital goods - Rule 3(5) of CENVAT Credit Rules, 2004 - whether the payment of duty on the basis of transaction value is not correct and the assessee was justified in availing CENVAT credit - Held that - As the determination of the said question is excluded under Section 35(G) of the Act, the revenue has to prefer an appeal to the Apex Court under section 35(L) - Appeal is rejected

Summary

Issues:
1. Challenge to Tribunal's order by revenue.
2. Interpretation of Rule 3(5) of CENVAT Credit Rules, 2004.
3. Correctness of payment of duty on transaction value.
4. Jurisdiction under Section 35(G) and (L) of the Act.

Analysis:
1. The High Court dealt with an appeal by the revenue challenging the Tribunal's order upholding the Commissioner of Central Excise's decision to set aside the Assistant Commissioner's demand for a sum under Section 11(A) of the Central Excise Act, 1944, along with interest and penalty. The issue revolved around the liability of the assessee to pay an amount equal to the credit availed for capital goods removed 'as such' under Rule 3(5) of the CENVAT Credit Rules, 2004. The Assistant Commissioner found the assessee liable for not paying the required amount, but the Commissioner and Tribunal disagreed, interpreting 'as such' to refer to capital goods not used, thereby justifying the duty payment on the transaction value of used capital goods.

2. The key question before the court was whether the duty payment based on the transaction value was correct and if the assessee was justified in availing CENVAT credit. This issue falls within the scope of 'determination of the rate of duty' as per Section 35(G) and (L) of the Act. Since the determination of this question is excluded under Section 35(G), the revenue was directed to appeal to the Apex Court under Section 35(L). Consequently, the High Court declined to entertain the appeal, rejecting it and reserving the revenue's liberty to challenge the impugned orders before the Apex Court under Section 35(L) of the Act.