2011 (4) TMI 1116 - HC - Central Excise

Cenvat credit - assessee claimed that cenvat credit was not liable to be reversed while clearing used capital goods on which no central excise duty was attracted Held that - appellant submits that mere keeping the capital goods and putting them to same use is not enough to exclude the requirement of reversing cenvat credit under Rule 3(5) of the Cenvat Credit Rules 2004 (for short the Rules ) as the said provision applies if the goods are as such goods were not cleared in the same position but after having been used and in such situation Rule 3(5) of the Rules will not apply appeal is dismissed

Summary

Issues:
1. Interpretation of Rule 3(5) of the Cenvat Credit Rules, 2004 regarding the reversal of cenvat credit on used capital goods.
2. Whether the capital goods, after being put to use, can be considered as cleared "as such" under the Rules.
3. Applicability of Rule 3(5) of the Cenvat Credit Rules, 2004 when used capital goods are sold.

Analysis:

Issue 1:
The appeal was filed by the revenue under Section 35G of the Central Excise Act, 1944 against the order of the Customs, Excise & Service Tax Appellate Tribunal. The substantial questions of law raised included the legality of the Tribunal's judgment and the interpretation of Rule 3(5) of the Cenvat Credit Rules, 2004. The Tribunal had previously upheld the decision of the Adjudicating Authority and the Commissioner (Appeals) regarding the reversal of cenvat credit on used capital goods.

Issue 2:
The Tribunal, in its observation, highlighted that capital goods, once installed and put to use, cannot be considered as cleared "as such." It referred to previous cases where it was held that goods removed after being used cannot be treated as cleared "as such." The Tribunal's decision was supported by the High Court of Mumbai. The Tribunal emphasized that the requirement of reversing cenvat credit under Rule 3(5) does not apply when goods are sold after being used, as in the present case.

Issue 3:
The appellant argued that simply putting the capital goods to use is not sufficient to exclude the requirement of reversing cenvat credit under Rule 3(5) unless the goods are sold as scrap or unserviceable. However, the Court disagreed with this submission, stating that cenvat credit needs to be reversed only if the goods are cleared in the same position without payment of excise duty. Since, in this case, the goods were not cleared in the same position but after being used, Rule 3(5) of the Cenvat Credit Rules, 2004 was deemed inapplicable.

In conclusion, the Court dismissed the appeal, stating that no substantial question of law arises in this matter. The judgment reaffirmed the Tribunal's decision that the reversal of cenvat credit on used capital goods was not required under Rule 3(5) of the Cenvat Credit Rules, 2004, as the goods were not cleared "as such" but after being put to use.