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TMI Blog2016 (5) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... of capital goods which was used before it is removed. In that view of the matter, second question of law is answered in favour of the assessee and against the Revenue. See Solectron Centum Electronics [2014 (10) TMI 596 - KARNATAKA HIGH COURT ] - Appeal No. E/355/12-Mum - Order No. A/87504/16/SMB - Dated:- 3-5-2016 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) For the Petitioner : Shri M.P.S. Joshi, Advocate For the Respondent : Shri S.V. Nair, A.C. (AR) ORDER PER : M.V. RAVINDRAN This appeal is directed against Order-in-Appeal No. PIII/RS/362/2011 dated 13/12/2011. 2. The issue in brief is that the appellant has availed the Cenvat Credit of the Central Excise duty paid on the capital goods and used the same in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l representative, after taking me through the case records, submits that the provision for reversal of Cenvat Credit availed on capital goods either used or unused was in the statute right from the beginning. He would read the provision of Rule 57-S of Central Excise Rules, 1944. He would then draw my attention to the statement of respondents officers and submits that they had agreed to discharge the duty liability accepting that they had cleared the capital goods without reversing the Cenvat Credit availed. He would submit that the Larger Bench decision on the Tribunal in the case of Modernova Plastyles Pvt. Ltd. 2008 (232) E.L.T. 29, has interpreted the provisions of the Rule 4(5) of CCR and more specifically of the expression as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and such removal shall be made under the cover of an invoice referred to in rule 9 : Provided that such payment shall not be required to be made where any inputs are removed outside the premises of the provider of output service for providing the output service: Provided further that such payment shall not be required to be made when any capital goods are removed outside the premises of the provider of output service for providing the output service and the capital goods are brought back to the premises within 180 days, or such extended period not exceeding 180 days as may be permitted by the jurisdictional Deputy Commissioner of Central Excise, or Assistant Commissioner of Central Excise, as the case may be, of their remova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in the case of Commr of Cen. Ex., Ludhiana Vs. Khalsa Cotspin (P) Ltd., reported in 2011 (270) E.L.T. 349 (P H) has held as under: The assessee having validity availed cenvat credit, same is required to be reversed only if goods were cleared in the same position without payment of excise duty. In the present case, it has been held by the Tribunal that goods were not cleared in the same position but after having been used and in such situation Rule 3(5) of the Rules will not apply. 12. Bombay High Court in the case of Cummins India Ltd. Vs Commr of Cen. Ex., Pune-III reported in 2007 (219) E.L.T. 911 (Tri.-Mum.) confirmed the order of the Appellate Tribunal which has held as under: The plain and simple meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d making the position clear which was not there in the earlier orders. The proviso reads thus: If the capital goods, on which CENVAT credit has been taken, are removed after being used, the manufacturer or provider of output service shall pay an amount equal to the CENVAT credit taken on the said capital goods reduced by 2.5 percent for each quarter of a year or part thereof from the date of taking the Cenvat credit. This proviso was added by a Notification No. 39/2007 dated 13-11-2007. therefore, prior to 13-11-2007, there was no duty payable in respect of capital goods which was used before it is removed. In that view of the matter, second question of law is answered in favour of the assessee and against the Revenue. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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