2008 (11) TMI 207 - AT - Central Excise

Cenvat Credit Removal of capital goods after put to use reversal of cenvat credit Held that - the manufacturers (respondent) are not disputing the fact that the words as such would include used capital goods also and therefore credit is required to be reversed on clearance of such used capital goods. The only dispute is regarding the quantum of credit required to be reversed - The law during the relevant time was very clear as under Rule 3(5) of the Cenvat Credit Rules, 2004, the respondents were required to pay an amount equivalent to the credit availed in respect of capital goods cleared as such - respondents were required to reverse the entire credit penalty not to be imposed.

Summary

Issues:
1. Interpretation of the term "removed as such" in relation to clearance of used capital goods.
2. Determination of the quantum of credit required to be reversed on clearance of used capital goods.
3. Applicability of Rule 3(5) of the Cenvat Credit Rules, 2004 in the case.

Analysis:
1. The appeal involved a dispute regarding the interpretation of the term "removed as such" concerning the clearance of used capital goods. The revenue contended that the expression should be understood in its original form, irrespective of whether the goods were new or used. The Larger Bench decision in the case of Modernova Plastyles Pvt. Ltd. supported this view, emphasizing that the term encompasses goods cleared without use or after being put to use. However, the Advocate for the Respondent argued that the Larger Bench decision did not consider Rule 3(4)(c) (now Rule 3(5)), which was applicable in their case. They relied on the Tribunal decision in Cummins India Ltd., upheld by the Bombay High Court, to support their contention that no further duty was payable on used capital goods cleared after payment of duty on the depreciated value.

2. The main point of contention was the quantum of credit required to be reversed on the clearance of used capital goods. The Respondent maintained that as they had paid duty on the depreciated value of the capital goods under Rule 57S(2), no additional duty was payable. They argued that the credit eligibility should be determined based on the date of receipt of goods, as established in the Tribunal's decision in the case of Spenta International Ltd. The Appellate Tribunal, however, observed that the Respondents were required to reverse the entire credit amount under Rule 3(5) of the Cenvat Credit Rules, 2004, on clearance of used capital goods, contrary to the Respondent's argument.

3. The Appellate Tribunal ultimately upheld the Revenue's appeal partially. It ruled that the Respondents were obligated to reverse the entire credit amount under Rule 3(5) of the Cenvat Credit Rules, 2004, on the clearance of used capital goods, restoring the Order-in-Original demanding duty payment. However, the Tribunal decided that the penalty was not imposable due to the contradictory views within the Tribunal on this matter, thus upholding the Commissioner (Appeals) order on penalty. The Respondents were directed to pay interest as per the Order-in-Original. The appeal was partly allowed, with the judgment pronounced on 21-11-2008.