2017 (7) TMI 489 - AT - Central Excise

MODVAT credit - removal of Capital goods as such - demand of an amount equal to the Modvat credit taken on the capital goods by invoking Rule 3 (5) of the CCR, 2004 on the ground that the capital goods were removed as such - Held that - when capital goods are removed after use it cannot be said that the goods are removed as such for the purpose of reversing the entire credit taken at the time of receiving the capital goods as prescribed in Rule 3 (5) of CCR 2004 - appellants have removed the capital goods after more than 10 years and that also after being used in their factory for a long time. The cenvat credit was taken in May 1995 to August 1995. The factory was later closed down and the capital goods were removed on 26.12.2006, after payment of excise duty on the transaction value - the demand is unsustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Demand of Modvat credit availed on capital goods removed after use.
2. Interpretation of Rule 3(5) of Cenvat Credit Rules, 2004.
3. Applicability of Notification No. 39/2007 dated 13.11.2007.
4. Legal provision for reversal of Cenvat credit on removed capital goods.
5. Justification of demand raised by the Revenue.
6. Consideration of judgments by Larger Bench and High Court.

Analysis:

1. The appellants had taken Modvat Credit on capital goods during a specific period and later removed the same after using them for the manufacture of dutiable final products. The Revenue issued a show cause notice invoking Rule 3(5) of the Cenvat Credit Rules, 2004, proposing to demand an amount equal to the Modvat credit taken on the capital goods.

2. The appellants argued that prior to the introduction of Notification No. 39/2007, there was no legal provision for the reversal of Cenvat credit on capital goods removed after use. They cited the case law of CCE, Hyderabad Vs. M/s. Navodhya Plastic Industries Ltd. and CCE, Salem Vs. Rogini Mills Ltd. to support their contention that a reduction of 2.5% for each quarter of a year from the date of taking credit would suffice.

3. The Revenue contended that the demand was justified as the capital goods were removed as such under Rule 3(5) of the Cenvat Credit Rules, 2004, making the appellants liable to pay duty and penalty.

4. The Tribunal noted that the capital goods were removed after more than 10 years of use, and after considering the judgments of the Larger Bench and the High Court, it was held that the demand for the Modvat credit was unsustainable. The Tribunal followed the principle that a reduction of 2.5% for each quarter of a year from the date of taking credit would be sufficient, considering the long period of use in this case.

5. Ultimately, the Tribunal allowed the appeal, providing consequential relief as per the law, based on the interpretation of Rule 3(5) and the relevant case laws, thereby setting aside the demand raised by the Revenue.

This detailed analysis of the judgment highlights the key issues involved, the arguments presented by both parties, the legal provisions considered, and the final decision rendered by the Tribunal based on the interpretation of the law and relevant precedents.