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TMI Blog2016 (3) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... No. E/835/2009 - Order No. A/86329/16/SMB - Dated:- 26-2-2016 - Ramesh Nair, Member (J) For the Appellant : Shri Sanjay Hasija, Supdt. (AR) For the Respondent : Shri G. L. Deshpande, Adv ORDER The appeal is directed against the Order-in-Appeal No. SN/130/NGP/2009 dt. 13.5.2009 passed by Commissioner(Appeals) of Central Excise Customs, Nagpur whereby the Ld. Commissioner by setting aside the Order-in-Original No. 74/CE/ADC/AKC/2008 dt. 5/12/2008 allowed the appeal of the respondent. 2. The issue involved in the fact of the present case is that the respondent acquired capital goods from their principals M/s. ITC Ltd. for carrying out the job work on behalf of M/s. ITC Ltd. on lease basis. The respondent were paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f judgment of German Remedies Ltd. (supra). He further submits that even in case where the ownership does not remain with the manufacturer assessee for any reason and so long the capital goods is used for manufacture of final product, credit should be allowed. He placed reliance on the judgment of Hon'ble Bombay High Court in the case of Commissioner of Central Excise, Raigad Vs. Modernova Plastyles Pvt. Ltd. 2015 (323) E.L.T. 352 (Bom.). 5. I have carefully considered the submissions made by both the sides. I find that the credit was proposed to be disallowed only on the condition that the capital goods so supplied by M/s. ITC Ltd. is not a financing company. The Revenue has heavily interpreted the provision of Rule 4(3) of the Cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on said goods, it would not be necessary that capital goods shall either be owned by the assessee or those shall be acquired by finance from financing agency. Denial of credit based on such ground is unsustainable. 15. We therefore consider that having regard to the prevailing legal position applicable to the case of the respondent assessee, Modvat/Cenvat credit cannot be disallowed to the assessee and it would be entitled to the same. We also consider that the decision of the Tribunal in the case of Terene Fibres India Pvt. Ltd. vs. Commissioner of Central Excise Mumbai VI would be of no assistance to the appellant Revenue to carry forward its case, for, it cannot be said that in the said case there has been conclusive decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported as 2002 (144) E.L.T. 606 (Tri. Mumbai) In the case of M/s. Terene Fibres Pvt. Ltd. Vs. CCE, Mumbai the Hon'ble CESTAT hold that, The correspondence pursuant to the Audit Report had also established ownership with RIL. Therefore, for over 3 years, this fact was in the knowledge of the Department. First Audit Report was dated 1-2-1995. In follow-up reports, instead of issuing demands, the Department merely requested the assessee to reverse the credit. The fact of the appellants having taken credit subsequently totaling nearly ₹ 3 crores, thereafter was intimated to the Department every month. Even then the Department continued to tolerate the continued wrong availment without issuing Show-cause notice-Notices for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case. Court, therefore, observed that if it is not clear, it is not the duty of the Court to spell out with difficulty in order to be bound by it. We agree with the submission of the learned advocates that there is no ratio decidendi in the decision in the case of Terene Fibres as both the Hon'ble Member have come, no doubt, to a common conclusion but via diametrically opposite routes. The learned Advocates have rightly pointed out that as per the decision of the learned Member (Technical) it is not relevant as to who had purchased the capital goods, where as according the learned Member (Judicial) a person who gets property absolutely, certain benefit are derived by him, under Rule 57R(3) and the person who gets limited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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