9911796707
TMI Blog2012 (12) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. Briefly stated the facts relevant for disposal of the appeal are that the appellant is engaged in the manufacture of Manmade yarn of synthetic & artificial stable fibre & cotton yarn falling under Chapters 55 & 52 of the Schedule to the Central Excise Tariff Act, 1985. 3. In the years 1996 and 1997, the appellant purchased D.G. Sets with accessories and paid excise duty on the same. On 17-3-1999, the appellant also purchased Water Heat Recovery Equipment on payment of excise duty. The appellant claimed Cenvat credit in respect of all the three items. In December, 2006, the appellant sold those D.G. Sets with accessories at assessable value of Rs. 17,37,000/- each and paid excise duty on transaction value. The appellant also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the capital goods in question were used by the appellant for a period of almost ten years and mere after the aforesaid equipment namely D.G. Sets and water heat recovery equipment was sold in the market after it lost its utility for the appellant, on payment of excise duty. Ld. Advocate for the appellants further submitted that the issue in question is squarely covered by the judgment of Punjab & Haryana High Court in the matter of Commissioner of Central Excise, Chandigarh v. Raghav Alloys Ltd. reported in 2011 (268) E.L.T. 161 (P & H) = 2012 (26) S.T.R. 87 (P & H) and the judgment of the Madras High Court in the case of Commissioner of Central Excise, Salem v. Rogini Mills Ltd. reported in 2011 (264) E.L.T. 367 (Madras) as also various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchased by the appellant in the year 1996 and 1997 and those were sold in the market on assessable value after about nine years on payment of excise duty on transaction value. Ld. AR of Revenue has tried to justify the impugned order with the support of Rule 3(4)(c) and Rule 3(5) of Cenvat Credit Rules which are reproduced thus :- (4) The CENVAT credit may be utilized for payment of - (c) an amount equal to the CENVAT credit taken on capital goods if such capital goods are removed as such; or (5) When inputs or capital goods, on which CENVAT credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final products or provider of output service, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to use for a period of 9-10 years. Thus, it cannot be said that dispute of abovesaid capital goods on transaction value would be covered under the expression "removed as such" so as to attract the reversal of Cenvat credit availed under Rule 3(4)(c) or Rule 3(5) of Cenvat Credit Rules. Similar issue came up before the Punjab & Haryana High Court in the matter of Raghav Alloys Ltd. (supra) wherein Punjab & Haryana High Court after considering the judgment of Larger Bench in Modemova Plastyles Pvt. Ltd. (supra) disagreeing with the view taken by the Larger Bench dismissed the appeal of the department with the following observations :- "We have heard arguments of both the ld Counsel. The Tribunal has rightly noted that unlike inputs, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nery for nine years and paid duty on transaction value. The machine cleared after putting into use for nine years cannot be treated as cleared 'as such'. Insertion of proviso w.e.f 13-11-2007 makes it clear that there is difference between machines cleared without putting into use and cleared after use. The Bombay High Court has upheld the view of the Tribunal in the case of Cummins India Limited v. CCE, Pune-III - 2007 (219) E.L.T. 911 (Tribunal.-Mumbai). The Tribunal in the case of Nahar Fibres has also dismissed appeal of the Revenue and there is nothing to show that the said decision of the Tribunal has been set aside by any Court. 9. In these circumstances, we are of the considered opinion that the Appeal of the Revenue is bereft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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