2017 (6) TMI 1136 - AT - Central Excise

CENVAT credit - removal of capital goods after use - in terms of Rule 3(5) of Cenvat Credit Rules, 2004 whether an assessee is required to pay duty equal to the total amount of Cenvat Credit availed on capital goods or on transaction value when it is cleared after use? - Held that - even though the machine was put to use, while clearing its nature of as such does not change and therefore the removal falls under Rule 3(5) of Cenvat Credit Rules, 2004 - as per Sub-rule (5) of Rule 3 of Cenvat Credit Rules, 2004 there is no dispute that the duty is required to be paid on the capital goods only when it is removed as such from factory premises of the assessee. As per undisputed facts of this case all the capital goods were admittedly cleared after substantial use - , in case of removal of used capital goods, the duty equal to cenvat credit availed cannot be leviable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Interpretation of Rule 3(5) of Cenvat Credit Rules, 2004 regarding duty payment on capital goods cleared after use.

Analysis:
The case involved a dispute over whether an assessee is required to pay duty equal to the total amount of Cenvat Credit availed on capital goods or on transaction value when cleared after use, as per Rule 3(5) of Cenvat Credit Rules, 2004. The appellant argued that prevailing rules at the relevant period did not mandate duty payment on capital goods cleared after use. They cited decisions by various High Courts in their favor, emphasizing that duty was paid based on transaction value or depreciated value in different scenarios. The Revenue, however, relied on the Larger Bench decision in Modernova Plastyles Pvt. Ltd. case and the Tribunal's decision in Mahalaxmi Fabrics Mills Pvt. Ltd. case to support their stance.

The Member (Judicial) carefully analyzed the submissions and the relevant Rule 3(5) of Cenvat Credit Rules, 2004. It was noted that duty payment was required only when capital goods were removed "as such" from the factory premises. The term "as such" indicated the nature of the machine, which should either remain "as such" or be different after use. The Member interpreted that if capital goods were cleared after substantial use, they did not remain "as such," and hence Rule 3(5) did not apply. Reference was made to the second proviso inserted in 2007, clarifying that duty equal to Cenvat credit availed was not leviable on used capital goods. The Member highlighted the consistent stance of Karnataka and Delhi High Courts, supported by the Bombay High Court decision in Cummins India Ltd. case, that Rule 3(5) did not apply to removal of capital goods after use. Consequently, the duty paid by the appellant, although not contested, was deemed unnecessary. The impugned order was set aside, and the appeal was allowed.

In conclusion, the judgment clarified the interpretation of Rule 3(5) of Cenvat Credit Rules, 2004 regarding duty payment on capital goods cleared after use. It emphasized that duty was not applicable to capital goods cleared after substantial use, as they did not remain "as such." The decision aligned with the rulings of various High Courts, indicating that no duty was chargeable on the removal of used capital goods.