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TMI Blog2018 (12) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be made. Appellant is not required to pay duty on removal of capital goods as such - Appeal allowed - decided in favor of appellant. - Appeal No. E/977/2008–SM - A/12817/2018 - Dated:- 20-11-2018 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For Appellant: Shri Amal Dave (Advocate) For Respondent: Shri A. Mishra (AR) ORDER Per: Ramesh Nair The brief facts of the case are that the appellant have availed cenvat credit on capital goods after put to use the said capital goods almost 1 year and 2 months. The said used capital goods were removed to their own Odhav Unit during the period July 2006. The case of the department is that in Terms of Rule 3(5) of Cenvat Credit Rules, 2004, the appellant is required to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, I find that during the relevant period i.e. July 2006, the Rule 3(5) of Cenvat Credit Rules, 2004 reads as under: Rule 3(5) of Cenvat Credit Rules, 2004:- (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 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 or capital goods are removed outside the premises of the provider o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and scrap. There is no provision under Rule 3(5) or in any other Rule to demand duty if capital goods are cleared after use, therefore by invoking Rule 3(5) duty demand on the removal of capital goods as such cannot be made. The issue has been settled in various cases as cited by the Ld. Counsel. In the case of Solectron Centum Electronics Ltd (Supra), Hon ble Karnataka High Court passed the following order after relying upon various decisions of this Tribunal as well as Hon ble Delhi High Court. The relevant paras are reproduced below: 14. Therefore, it is clear, till the law was amended as on 13-11-2007 in respect of used capital goods, there was no liability to pay duty. In fact, this is evident from the fact that in Cenvat C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the assessee and against the Revenue. 16. For the foregoing reasons, we do not see any merit in this appeal. Accordingly, the appeal is dismissed. 5. In view of the above judgments, the issue is no longer res-integra, accordingly, appellant is not required to pay duty on removal of capital goods as such. As regard the judgments cited by Ld. AR, the Tribunal decision in the case of Harsh International P. Ltd was reversed by Hon ble Delhi High Court reported at Harsh International (Khaini) Pvt. Ltd Vs. CCE 2012 (281) ELT 714 (Del). As regard the decision of single member bench, this Tribunal in the case of Betts India Pvt. Ltd (Supra) held that there is no dispute that whether the duty is required to be paid or othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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