9911796707
TMI Blog2011 (3) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 3. During the course of audit, it was found that the appellant had cleared used capital goods i.e. coal fired thermo its accessories under their invoice dated 20-12-05 at the total value of ₹ 2 lakhs without payment of any central excise duty and without reversal of cenvat credit. The said capital goods were received in the appellant s factory on 27-9-2001 and total cenvat credit of ₹ 2,24,000/- was availed on the same. On being pointed out by the audit party, appellant agreed that they should have cleared the said capital goods on payment of duty. Accordingly they debited an amount of ₹ 33,280/- as duty of excise payable on the transaction value of the said capital goods. They also debited interest of ₹ 8,91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital goods, after use, are removed, the manufacturer shall pay an amount equal to the cenvat credit taken on the said capital goods reduced by 2.5% for each quarter of a year or part thereof from the date of taking of the credit. He, though observed that such rules were introduced w.e.f. 13-11-2007 but held that the same are in the nature of a guiding factor and adopt the earlier instructions of the Board providing a logical and just solution to the problem. He accordingly extended the benefit of depreciation to the appellant and confirmed their duty liability to the extent of ₹ 1,28,800/- along with confirmation of interest and imposition of penalty under Section 11AC to the extent of 100% duty. He also extended the option to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, being in the context of Rule 4(5)(a) of the Cenvat Credit Rules, 2004 is not directly applicable to the interpretation of Rule 3(5). The Tribunal observed that in as much as the issue stands decided in the case of Cummins Ltd. and stands confirmed by the Bombay High Court, the decision of the Bombay High Court is binding upon the Tribunal. 8. Applying the ratio of the said decision to the facts of the case, it is seen that the appellant, on being pointed out, paid the duty on the used capital goods on the transaction value, along with interest. Further the applicability of the amended provisions of Rule 3(5), which were admittedly introduced w.e.f. 13-11-2007 in respect of capital goods cleared in December 2005, as has been done by C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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