2017 (4) TMI 379 - AT - Central Excise

Removal of capital goods after use - The contention of the department is that appellant is liable to pay excise duty on such removal - Held that - Duty on removal of capital goods is payable only where the capital goods is removed as such, that means without putting to use. On removal of capital goods after use there is no provision for payment of duty. There is a provision for payment of duty either under Rule 3(5) or Rule 4(5)(a) on removal of capital goods but there is no machinery provision for recovery of the cenvat credit for the reason that Rule 14 only provides for recovery mechanism in case of wrong availment of credit. In the present case, the availment of credit is not wrong. The revenue is seeking payment of cenvat credit only on the removal of capital goods and there is no machinery provision for recovery of duty on removal of capital goods. At the material time, no provision existed for recovery of cenvat credit in case the assessee fails to pay the excise duty on removal of capital goods. In the present case, the appellant have admittedly paid duty along with interest before issuance of SCN - The appellant have admittedly paid duty and their grievance is only against imposition of penalty and demand of interest - As regards the interest, once the appellant have admittedly paid the duty, payment of interest is inevitable and the same is piggyback of the principal amount of duty. Therefore, the interest was rightly demanded - demand of interest upheld. The duty was not otherwise chargeable on the removal of capital goods, the penalty u/s 11AC is not imposable - penalty imposed u/s 11AC is set aside. Appeal allowed - decided partly in favor of appellant.

Summary

Issues: Liability to pay excise duty on removal of capital goods under Rule 4(5)(a) of Cenvat Credit Rules, 2004; Machinery provision for recovery of cenvat credit on removal of capital goods; Applicability of Rule 3(5) for payment of duty on cleared capital goods; Imposition of penalty and interest.

Analysis:

1. Liability to pay excise duty on removal of capital goods under Rule 4(5)(a) of Cenvat Credit Rules, 2004:
The appellant removed capital goods from their factory under Rule 4(5)(a) of Cenvat Credit Rules, 2004, which led to a demand for excise duty by the department. The contention was that duty is required to be paid on such removal. The adjudicating authority confirmed the demand and penalty, which was upheld by the Commissioner (Appeals).

2. Machinery provision for recovery of cenvat credit on removal of capital goods:
The appellant argued that there was no machinery provision for the recovery of cenvat credit on the removal of capital goods during the relevant period (June 2003 to May 2006). The absence of a specific provision for recovery of cenvat credit in such cases was highlighted, as Rule 14 only addressed recovery in case of wrong availment of credit. The appellant cited various judgments to support this argument.

3. Applicability of Rule 3(5) for payment of duty on cleared capital goods:
The appellant contended that as per Rule 3(5), duty is required to be paid only on capital goods cleared as such, not on those used in the manufacture of final products and then cleared. The argument emphasized that duty on removal of capital goods is payable only if the goods are removed as such, without being utilized. The absence of a provision for duty payment on removal after use was highlighted.

4. Imposition of penalty and interest:
The appellant had paid the duty along with interest before the show-cause notice was issued. The prayer was against the imposition of penalty and demand for interest. The Tribunal upheld the demand for interest, considering it inevitable once the duty was paid. However, the penalty under Section 11AC was set aside as the duty was not otherwise chargeable on the removal of capital goods.

In conclusion, the Tribunal partially allowed the appeal, upholding the demand for interest but setting aside the penalty under Section 11AC. The judgment highlighted the absence of a recovery provision for cenvat credit on the removal of capital goods during the relevant period, emphasizing the specific conditions under Rule 3(5) for duty payment on cleared capital goods.