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TMI Blog2019 (5) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cenvat credit as the goods have not been physically removed from their premises to their sister unit. Thus, the appellant is not required to reverse Cenvat credit as the capital goods have not been physically removed from the premises where they were initially installed. Extended period of limitation - HELD THAT:- The whole of duty has been confirmed by invoking the extended period of limitation - the extended period of limitation is not invokable. Appeal allowed - decided in favor of appellant. - Appeal No.ST/60534/2017-Cus (DB) - Final Order No. 60548/2019 - Dated:- 4-4-2019 - Mr. Ashok Jindal, Member (Judicial) And Mr. C.L. Mahar, Member (Technical) Present for the Appellant: Shri J.C. Patel, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Vodafone Infrastructure Limited. The matter was adjudicated, the demand under Rule 3 (5) of the Cenvat Credit Rules, 2004, was confirmed. Against the said order, the appellant is before us. 3. The contention of the Ld. Counsel for the appellant is that the issue stands settled in their own case vide Tribunal s Order reported in 2018-TIOL787-CESTAT-AHM. He further submits that the ownership of capital goods is not relevant for the purpose of Cenvat credit. In fact, the capital goods in question continued to be used by the appellant for providing output service. Therefore, in terms of the decision of Hon ble Punjab Haryana High Court in the case of CCE vs. Pepsi Foods Limited -2010 (254) ELT 284 (P H), the Cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellant relied on various judicial pronouncements. Therefore, the issue is to be decided whether in terms of Rule 3(5) of Cenvat Credit Rules, 2004 the capital goods are required to be physically removed or mere transfer can be said that goods have been removed. The said issue has been examined by the Hon'ble Apex Court in the case of J.K. Spinning and Weaving Mills Limited vs. UOI - 1987 (32) ELT 234 (SC)=2002-TIOL-559-SC-CX-LB wherein the Hon'ble Apex Court observed as under:- 38. It is submitted on behalf of the appellants that the Explanations to Rule 9 and Rule 49 are ultra vires the provision of Clause (b) of sub-section (4) of Section 4 of the Act inasmuch as place of removal as defined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Bhilai Steel Plant (supra) wherein this Tribunal observed as under:- Jam, Id. Advocate for the respondent. 10. Ld. A. R. submits that in terms of Rule 3(4) of the Cenvat Credit Rules, the payment of an am6untequiv`lent to the credit availed on capital goods is required to be made inasmuch as the power plant stands sold to M/s BESCL even though there is no physical removal of goods even after sale. He argued that the transaction was nothing short of physical removal of the capital goods. He relied upon the decision of the Hon ble Karnataka High Court in the case of Commissioner of Central Excise, Belgaum vs. Associated Cement Co. Limited - 2009 (236) ELT 240 (Kar.) - 2007-VIL-Ol-KARCE= 2007-TI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of L.G. Balakrishnan and Bros. Limited (supra), the Tribunal has examined a similar question as is before us and considered the meaning of the word removal as explained by the Hon ble Supreme Court and held as under: 10. In view of the above settled decision, we find that the provisions of Rule 3 (5) are not attracted in the present case. The original authoritys attempt to distinguish the above findings is not appropriate. He found that these decisions are regarding change of ownership of whole factory whereas here only a part of the factory is transferred. We find such finding as untenable. Further, regarding question of issue of invoice by the appellant for sale and transfer of capital goods and inputs to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent. The Tribunal decision cited in the case of Steel Authority of India Limited - 2007 (219) ELT 960 (Tri-Del.) - 2007-VIL-60-CESTAT-DEL-CE=2007-TIOL-438-CESTAT-DEL has dealt with identical facts pertaining to another unit of respondent at Rourkela. We also note that the respondent has cited similar decision from the Hon ble Allahabad High Court as well as Madras High Court. Further, I find that after the decision of Associated Cement Co. Limited, the Hon ble Karnataka High Court itself has examined the issue again in the case of Commissioner vs. Ultra Tech Cement Limited - 2015 (321) ELT A150 (Kar.) and dismissed the appeal filed by Revenue, affirming the decision of this Tribunal, reported in 2014 (310) ELT 554 (Tri. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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