2018 (5) TMI 306 - HC - Central Excise

Whether the CESTAT committed error in non-considering that the Respondents deliberately cleared goods under Rule 4(5) of CENVAT rules as if cleared for repairing/reconditioning i.e. Job work with intention to avoid payment of amount equal to CENVAT Credit as required under Rule 3(5) of CENVAT Rules and therefore contravened Rule 4(5) and Rule 3(5) of CENVAT Rules 2004? Held that - It is not disputed that, before the amended Rule 3(5) came into force, the goods have been removed by the respondent. The word as such has been interpreted by this court and also by the Delhi High Court in case of Harsh International Pvt. Ltd. 2012 (6) TMI 340 - DELHI HIGH COURT and it has been held that, after retaining the goods for more than two years, the same have been sent back to the parent unit - Tribunal has rightly decided the issue. Appeal dismissed - decided against Revenue.

Summary

Issues involved:
1. Interpretation of CENVAT rules regarding clearance of goods for repairing/reconditioning.
2. Application of specific rules under CENVAT Credit Rules 2004.
3. Consideration of precedents and judgments in similar cases.
4. Evaluation of the decision made by CESTAT regarding the demand under Rule 3(5) of CENVAT Credit Rules 2004.

Analysis:
1. The appellant raised concerns about the deliberate clearance of goods under Rule 4(5) of CENVAT rules to avoid payment of CENVAT Credit, contravening Rule 3(5) of CENVAT Rules 2004. The appellant argued that the goods were removed without any repair work, citing employee statements and relevant judgments. The Tribunal's decision was challenged based on the interpretation of Rule 4(5)(A) of the CENVAT Credit Rules.

2. The respondent contended that the goods were removed after two years without repair work, and the Commissioner applied Rule 3(5) instead of Rule 4(5)(A) of CENVAT Credit Rules. The respondent referred to previous judgments supporting their position, emphasizing that the Department did not challenge this aspect before CESTAT. The respondent's argument was centered on the application of the correct rule under the CENVAT Credit Rules.

3. The High Court analyzed the submissions of both parties, reviewed the CESTAT's judgment, and the original order. It noted that the Commissioner had applied Rule 3(5) and not Rule 4(5)(A) of the CENVAT Credit Rules, which was not challenged by the Department before CESTAT. The Court emphasized that the Department could not change its stance at this stage and rely on Rule 4(5)(A) of the CENVAT Credit Rules.

4. The Court considered the interpretation of the term "Capital goods cleared as such" and referred to previous judgments for guidance. It concluded that the Tribunal had correctly decided the issue based on the facts presented. Ultimately, the Court found no substantial question of law and dismissed the appeals without costs, upholding the Tribunal's decision regarding the demand under Rule 3(5) of CENVAT Credit Rules 2004.