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TMI Blog2011 (11) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,79,000/- charged by M/s. Jyoti Ltd., Central Excise duty @ 13% i.e. Rs. 36,010/- was charged. The repaired rotor assembly was sent back to the respondent under the invoice mentioning the charges for the repair including the charges for replacement part and the total excise duty paid. The respondent took Cenvat credit of the duty paid on the repaired rotor assembly. The department denied the same they denied this Cenvat credit on the ground that the invoice on the basis of which the Cenvat credit had been taken is of repaired capital goods and not new capital goods and that the repaired capital goods are not covered by the definition of 'capital goods' as given in Rule 57Q of Central Excise Rules. The Jurisdictional Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentative, pleaded that the repairing is not manufacture, that no duty was required to be paid, that in view of this, the respondent could not take Cenvat credit on the basis of the repair invoice issued by M/s. Jyoti Ltd. and that, therefore, the impugned order is not correct. He also emphasized that repaired goods are not covered by the definition of capital goods under Rule 57Q. 2.2 Shri Alok Arora, Advocate, the learned Counsel for the respondent, pleaded that the rotor assembly was a part of capital goods falling under heading 8503 of the Tariff, that the rotor assembly had been sent to M/s. Jyoti Ltd. for repairs and was sent back after repairs under the invoice of M/s. Jyoti Ltd., that the invoice of M/s. Jyoti Ltd. mentions the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir of rotor assembly and the payment of duty is evidenced by the invoice issued by M/s. Jyoti Ltd., its Cenvat credit cannot be denied to the respondent. The only way to deny the Cenvat credit in this case would be to revise the assessment at the end of M/s. Jyoti Ltd., refund the duty paid by them and only in that case the Cenvat credit could have been denied to the respondent, but this has not been done. Without revising the assessment at the end of manufacture of some inputs, the Cenvat credit cannot be denied at the end of the receiver of those inputs. This is the view which has been taken by the Apex Court in the case of CCE & C v. MDS Switchgear Ltd. (supra) and also by the Tribunal in the case of Owens Bilt Ltd. v. CCE, Pune (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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