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TMI Blog2016 (7) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... ion inasmuch as I nowhere find as to how the depreciated value stands arrived at by the appellant. Levy of penalty - It is evident that on the issue involved in this case, Delhi High Court and Chennai High Court had taken different views. As per Delhi High Court, no cenvat credit was required to be reversed when capital goods were cleared after use. In these circumstances, it will be unjust and injudicious to subject the appellant to penalty, particularly when the appellant cleared the capital goods and paid duty at the depreciated value. Further, as the goods were cleared to its sister unit and duty paid would have been available to sister unit as credit, there could not have been any malafide on the part of the appellant. Indeed, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be said to be removed as such and as has been held by Delhi High Court in the case of Harsh International (Khaini) Pvt. Ltd. vs. Commr. of Central Excise - 2012 (281) E.L.T. 714 (Del.) there was no provision during the relevant period for reversal of Cenvat credit taken on capital goods which were not removed as such, adding that the capital goods removed after use cannot be said to be removed as such. He, however, conceded that the Lager Bench of this Tribunal in the case of CCE, Hyderabad-III Vs. Navodaya Plastic Industries Ltd. - 2013 (298) ELT 541 (Tri.-LB) has departed from the judgment of Delhi High Court in the case of Harsh International (Khaini) Pvt. Ltd. (supra) and held that the judgment of Madras High Court in the case of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking of Cenvat credit is required to be followed. 5. Accordingly, i set aside the impugned order and remand the matter to the original adjudicating authority for arriving at the depreciated value of the capital goods in question inasmuch as I nowhere find as to how the depreciated value stands arrived at by the appellant. However, I do not find it a case of imposition of penalty the same is accordingly set aside. Appeal is disposed in above manner. While passing the said order, CESTAT had taken note of the judgment of Harsh International passed by a Delhi High Court and also judgment of CESTAT in the case of Larger Bench in the case of Navodaya Plastic Industries (supra). It is trite to say that judgment of Delhi High Court would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared the capital goods and paid duty at the depreciated value. Further, as the goods were cleared to its sister unit and duty paid would have been available to sister unit as credit, there could not have been any malafide on the part of the appellant. Indeed, in the appellants own case, CESTAT vide its order No.51934/2014 dated 15.04.2014 referred to earlier waived penalty altogether. Accordingly, no penalty is warranted in this case. 7. In the light of the forgoing, we set aside the impugned order and remand the matter to the Original Adjudicating Authority for arriving at the amount of cenvat credit liable to be reversed in accordance with the principle laid down by CBEC vide its circular No. 643/34/2002-EX dated 01.07.2002, which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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