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TMI Blog2012 (12) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that the inputs stand cleared from the factory - Cenvat Credit Rules, 2004 were amended on 16-5-2005 - The question whether this new provision will apply for inputs written off prior to 16-5-2005 was examined by the Mumbai High Court in the case of CCE v. Hindalco Industries Ltd. - [ 2011 (6) TMI 662 - BOMBAY HIGH COURT] and held that the provisions cannot be invoked in such a situation. - E/1833/2005 - A/380/2012-EX(BR)(PB) - Dated:- 30-3-2012 - Ms. Archana Wadhwa, Shri Mathew John, JJ. Shri Sunil Kumar, AR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. After hearing both the sides, we find that the appellants are engaged in the manufacture of Sunglasses and Spectacle frames falling under Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was issued to the appellant on 18-5-2004 for recovery of cenvat credit in respect the above inputs. The show cause notice culminated into an order passed by the Original Adjudicating Authority confirming recovery of Rs. 16,89,669/- along with confirmation of demand and imposition of identical amount of penalty. The appeal against the above order did not succeed before the Commissioner (Appeals). Hence the present appeal. 4. It is seen that right from the beginning, the appellant s contention is that the input in question are still in their possession and they have not cleared the same. Merely because the inputs were written off in their balance sheet, cannot be made the basis for denial of the credit. For the above proposition, they pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same were written off in the books of account and the value shown as nil, by itself, cannot be considered to amounting to removal of the inputs from the factory premises in the absence of any evidence to that effect. Law on the above issue stands settled by various decisions of the Tribunal as detailed below :- CCE, Indore v. Kinetic Motors Co. Ltd. - 2005 (183) E.L.T. 300 (Tri.-Del.) Ashok Leyland v. CCE, Chennai - 2005 (191) E.L.T. 277 (Tri.-Chennai) Kirloskar Oil Engines Ltd. v. CCE, Nasik - 2004 (178) E.L.T. 998 (Tri.-Mum.) Tecumseh Products India Pvt. Ltd. v. CCE, Hyderabad - 2008 (221) E.L.T. 129 (Tri.-Bang.) Bharat Heavy Electricals Ltd. v. CCE, Bangalore - 2002 (50) RLT 208 (CESTAT-Bang.) Ultratech Cement Co. Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of Biotech Synergy does not apply to the facts in the instant case. 10. As regards the Tribunal s decision in the case of RPG Cables - 2003 (157) E.L.T. 273 (Tri.-Del.) relied upon by the learned DR, we find from para 8 of the said judgment that there was a finding of fact given by the authorities below that the inputs were not physically available even after being written off from the account nor there was any evidence that the same were used in the manufacture of final product. 11. In the instant case, we find that the appellants have taken a categorical stand that the inputs were still in their possession. Revenue has not rebutted the above submission of the appellant and there is no allegation or finding that the inp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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