2010 (4) TMI 665

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..... tionate Cenvat credit depending upon the period of use, determined as per the formula prescribed in old Rule 57S(2)(c) of Central Excise Rules, 1944 / 2nd proviso to Rule 3(5) of Cenvat Credit Rules, 2004 (introduced w.e.f. 13-11-2007) would be required to be reversed, not the cenvat credit originally taken - if any depreciation on the value of the capital goods used, is to be allowed and proporti .....

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..... A show cause notice was issued to the respondents proposing recovery of duty short paid, on the ground that, as per Rule 3(5) of the Cenvat Credit Rules, 2004, when capital goods, on which Cenvat credit has been taken are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the credit availed in respect of such capital goods. Vide the Order-in-Orig .....

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..... l in the case of Modernova Plastyles Pvt. Ltd. v. CCE, Raigad [2008 (232) E.L.T. 29 (Tribunal-LB) = 2008-TIOL-1771-CESTAT-MUM-LB]. He would specifically read para 4 5 of the said decision of the Larger Bench. 5. On the other hand, ld. Counsel appearing on behalf of the respondents submits that the lower authorities should have granted benefit of the depreciation in the value of the capit .....

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..... would be required to be reversed, not the cenvat credit originally taken." 7. It can be seen from the above reproduced findings of the Tribunal that these findings may be contrary to the law settled by the Larger Bench in the case of Modernova Plastyles Pvt. Ltd. (supra). It is to be noted that if any depreciation on the value of the capital goods used, is to be allowed and proportionate c .....

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..... ng issue : (i) Whether the decision of Larger Bench in the case of Modernova Plastyles Pvt. Ltd. is silent on the depreciation aspect to be granted on the capital goods removed after use and proportionate reversal of credit and whether the same needs to be addressed to by a further Larger Bench. (ii) Whether the decision of the Division Bench in the case of Geeta Industries Pvt. Lt .....

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