2006 (3) TMI 12 - AT - Central Excise

Central Excise Cenvat credit on capital goods- Captive power plant sold with spares used in, its Cenvat credit reversed or not matter referred to Larger Bench

Summary

Issues:
1. Interpretation of Rule 57AB (1C) of the Central Excise Rules, 1944 regarding reversal of Modvat credit on sale of capital goods.
2. Whether the sale of Captive Power Plant, including Rotor/Insurance spares, amounts to removal of capital goods.
3. Application of Rule 9 and Rule 49 of the Central Excise Rules, 1944 in determining removal of capital goods.
4. Consideration of various Tribunal decisions on the interpretation of 'removal' of capital goods.

Analysis:
1. The case involved the interpretation of Rule 57AB (1C) of the Central Excise Rules, 1944 concerning the reversal of Modvat credit on the sale of capital goods. The appellant contended that the rule applies only when capital goods are physically removed from the factory premises. They argued that despite the sale of the Captive Power Plant to a new entity, the goods remained within the same premises and were still being used for manufacturing final products, thus fulfilling the conditions of use. The appellant also argued that the credit availed on valid duty paying documents should not be reversed as it was rightfully taken under Rule 57Q.

2. The adjudicating authority held that the sale of the Captive Power Plant, including the Rotor/Insurance spares, constituted a transfer to a new company, resulting in the exclusion of the plant from the factory premises. Referring to Rules 9 and 49 of the Central Excise Rules, the authority concluded that the sale amounted to the removal of capital goods as per Rule 57AB (1C). The change in the ground plan and the transfer of the goods to a new unit were considered as removal within the meaning of the rule.

3. The Commissioner emphasized that under Rule 9(1) and Rule 49, excisable goods, even if used captively in the same factory, are deemed removed, necessitating the payment of duty. The sale of the entire Captive Power Plant II, along with the disputed capital goods, was deemed as a removal from the appellant's factory. The absence of a physical boundary between the units did not negate the removal, as the legislative intent was to reverse credit on capital goods not in use by the availing entity.

4. The Tribunal referenced various decisions to support the differing interpretations of 'removal' of capital goods. While some decisions emphasized physical shifting as removal, others considered changes in ownership or possession as removal. Due to conflicting views, the Tribunal directed the matter to be resolved by a Larger Bench to provide clarity on the disputed issue, leaving other related issues open for future consideration post the decision by the Larger Bench.

This detailed analysis of the judgment highlights the key legal arguments, interpretations of relevant rules, and the application of precedents in determining the reversal of Modvat credit on the sale of capital goods, specifically in the context of the Captive Power Plant transfer in this case.