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TMI Blog2017 (6) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... removal of capital goods even after use will attract duty equivalent to the Cenvat Credit availed on such capital goods, following the Larger Bench decision of this Tribunal in the case of Modernova Plastyles Pvt. Ltd. Vs. Commissioner of C. Ex. Raigad 2008 (232) E.L.T. 29 (Tri.-LB). He submits that even after considering this the Larger Bench the various High Courts decided the issue in favour of the appellants which are cited below: (i) Cummins India Ltd. Vs. Commr. of C. Ex., Pune-lll 2007 (219) ELT 911 (Trib.) affirmed by the Hon'ble High Court in Commissioner of Vs. Cummins India Ltd. 2009 (234) ELTA120 (Bom.) (ii) Commr. of C. Ex. Bangalore-II Vs. Solectron Centum Electronics Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (339)E.L.T. 427 (Tri. -Ahmd.). 4. I have carefully considered the submissions made by both the sides, I find that the Ld. Commissioner (Appeals) upheld the views of the original authority that even though the machine was put to use, while clearing its nature of "as such" does not change and therefore the removal falls under Rule 3(5) of Cenvat Credit Rules, 2004 which reads as under: " (5) When inputs or capital goods, on which CENVAT credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final products or provider of output service, as the case may be, shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is not applicable. It can be seen from the above reproduced Rule 3(5) and it's second proviso which was inserted on 13.11.2007 which provides the mechanism for payment of duty on the used capital goods. This proviso itself makes it clear that under any circumstances, in case of removal of used capital goods, the duty equal to cenvat credit availed cannot be leviable. Though, the issue was decided by the larger bench in Modernova Plastyles Pvt. Ltd but after considering the Larger Bench decision, the Hon ble High Court of Karnataka and Delhi High Court have consistently held that Rule 3(5) is not applicable in case of removal of capital goods after use. As per my above discussion and following the ratio of the decision of Hon 'ble Karn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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