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TMI Blog2016 (11) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... e, for Appellant Shri Pawan Kumar Singh, Superintendent (AR), for Respondent ORDER Per Anil G. Shakkarwar The present appeal is filed by the appellant, M/s Kirloskar Batteries Private Limited, against Order-in-Appeal No. 298-CE/APPL/NOIDA/2009 dated 28/10/2009 passed by Commissioner of Central Excise Customs (Appeals), Noida. 2. The brief facts of the case are that the appellant was issued with a Show Cause Notice dated 28/05/2008 wherein it was proposed to recover an amount of ₹ 11,17,731/- which was equal to the amount of Cenvat credit availed in respect of capital goods cleared after use under invoice No. 01 dated 22/05/2007 to their another Unit at Banglore. The said Cenvat credit was availed during the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant has submitted that the capital goods were used in their Noida Unit for 10 years and after the use for 10 years they were removed to their another Unit at Banglore under invoice No. 1, dated 22/05/2007. It is very clearly stated in the invoice that the removal was stock transfer. He has further relied on ruling by Hon ble High Court of Delhi in the case of Harsh International (Khaini) Pvt. Ltd. Versus Commissioner of Central Excise reported at 2012 (281) E.L.T. 714 (Delhi). Referring to the ruling in Para 13, 14 15 of the said ruling of Hon ble High Court of Delhi, he has argued that the case is squarely covered by the case law and that the clearance of the said capital goods cannot be treated as removed as such of capital goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 268) E.L.T. 161 (P H) = 2012 (26) S.T.R. 87 (P H) to refer to unused capital goods and do not take in the used capital goods. It has been observed as under:- 8. We have heard arguments of both the ld. Counsel. The Tribunal has rightly noted that unlike inputs, which get consumed 100% with the same are taken up for use in relation to manufacture of finished goods, capital goods are used over a period of time. The capital goods lose their identity as capital goods only when after use over a period of time, the same has become in-serviceable and fit to be scrapped. The object of Cenvat Credit on capital goods is to avoid the cascading effect of duty. If even after use for a couple of years, the Cenvat Credit is required to be reverse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Mumbai). The Tribunal in the case of Nahar Fibres has also dismissed Appeal of the Revenue and there is nothing to show that the said decision of the Tribunal has been set aside by any Court. 9. In these Circumstances, we are of the considered opinion that the Appeal of the Revenue is bereft of merits so deserves to be dismissed. 10. The question raised by Revenue are answered in favour of Assessee and Appeal is dismissed. 14. Our attention was drawn to the judgment of the Bombay High Court in the case of Cummins India Limited Versus Commissioner of Central Excise, Pune-III, dated 23/07/2008. The High Court has affirmed the order of CESTAT, holding that the view that used capital goods cannot be said to be capital goods rem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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