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TMI Blog2023 (1) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise, Rajkot. Identical issues involved in both the appeals, for convenience, facts of Appeal No. E/765/2012 are considered first. 2. Briefly, the facts of the case are that Appellant is engaged in manufacturing of excisable goods viz. CNC turning centre, Vertical Machining Centre (VMC), SPM machine and horizontal machine falling under Chapter 84 of the Central Excise Tariff Act, 1985 at its factory which is registered under the provisions of the Central Excise Act, 1944 ("Act"). During the period 2006-07 to 2010-11, the appellant manufactured five machines namely VMC & SX04 at its factory for captive use. Due to space constraint the appellant transferred under invoice; endorsing transfer under Notification No. 67/95-CE, the said mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty demand and interalia held that benefit of notification no. 67/95-CE dated 16.03.1995 cannot be extended to the machines cleared to the appellant's another unit which is a different and distinct unit other than appellant's registered unit. He further confirmed demand of duty pertaining to the cenvat credit of Basic Excise duty utilized towards education cess and higher & secondary education cess. However, learned additional commissioner restricted the duty demand to the normal period of limitation and set aside the duty demand for the extended period on the ground that relevant details were reflected in ER-1 returns and that therefore there was no suppression of facts to invoke extended period of limitation under proviso to section 11A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not insisted on registration of the said additional premises of the appellant itself goes on to show that department accepts that the said additional premise of the appellant is the extension of the appellant's factory; that even if appellant would have paid duty the same would have been available as cenvat credit; when the entire situation is revenue neutral, demand of duty on transfer of such capital goods is not sustainable in law as the same would result in to unnecessary formality without any revenue implications. In this behalf he relied upon the decision of Tribunal in the case of Hartech Plastics (P) Ltd V. Commissioner of C. Ex., New Delhi - 2016 (340) ELT 601 (Tri. Del.). As regards, the issue of utilization of cenvat credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty but have to be treated as captively used in the factory of the appellant. The additional premise of the appellant where the said capital goods were installed is to be treated as extension of appellant's factory in view of definition of "Factory" as provided under section 2(e) of the Central Excise Act, 1944 as reproduced hereunder: "Factory" means any premises including the precincts thereof wherein or in any part of which excisable goods are manufactured or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on" The word "precincts" has to be given a broader meaning and the distance between such premises carrying out manufacturing process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, I find that the issue, all the same have kept simmering and remained fluidic all along at the various higher fora. However, the legal position seems to have altered in favour of the appellant with release of the recent case-laws on the subject matters are as follows:- (i) M/s. Madura Industrial Textiles Vs. CCE, Vapi, 2013 (3) TMI 2 - CESTAT "Utilization of basic excise duty for discharge of education cess - period from May 2009 to November 2009 - Held that:- As decided in assessee's own case in [2013 (1) TMI 352 - Gujarat High Court] wherein decided that the benefit of utilization of credit of basic excise duty for payment of education cess is to be allowed - in favour of assessee." (ii) M/s. New India Corpotec Versus Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/re-credit in PLA. I, therefore, find that the ratio of the said case law is distinguishable in respect of the units working in the DTA. 7.1 I also find that the Noticee has rightly placed reliance on the ratio of the decision of the Tribunal in the case of M/s. Sun Pharmaceutical Industries V/s. Commissioner of Central Excise, Jammu reported at 2007 (207) ELT 673 (Tri. Del) and Commissioner of Central Excise, Shillong V/s. Godrej Consumer Products Limited reported at 2007 (219) ELT 585 (Tri. Kolkata) wherein it has been clearly held that Education Cess can be paid by utilizing the Cenvat Credit of Basic Excise duty. 7.2 I also find ratio of the decision of the Commissioner of Central Excise, Vapi V/s. Balaji Industries reported at 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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