9911796707
TMI Blog2004 (6) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;capital goods'. The Tribunal applied the ratio rendered in the case of Jamna Auto Industries Ltd. [ 2000 (9) TMI 146 - CEGAT, NEW DELHI] and allowed the assessee's appeal. We are of the considered opinion that even in this case, the capital goods were not physically removed from the factory. Mere amendment in the approved plan cannot be considered as removal of capital goods from the factory, therefore, both the judgments are not distinguishable and are required to be applied to the facts of the case. The citation referred by SDR is clearly distinguishable and not applicable to the facts of this case. Respectfully following the ratio of the above cited judgments, the impugned order is set aside and appeal is allowed with consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when the entire factory has been sold by an agreement of sale dated 14-1-1998, such sale cannot be considered as removal of goods from their factory. The capital goods were not removed and therefore the provisions of Rule 57S is not attracted. The ground taken by the Commissioner in Para 12 of the order that the approved ground plan was later modified after three years of sale was never raised in the show cause notice. He submits that the appellant had not amended the approved ground plan. It was M/s. Tata Electric Company who purchased the entire power unit but after three years of such purchase at the instance of the Department, had got the ground plan modified. The contention of the Commissioner that the modified approved ground plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Industrial Gas v. CC [2000 (118) E.L.T. 257]. 5. On a careful consideration of the submissions made by both the sides we find lot of force in the submission made by ld. Counsel. The entire power plant was sold by the appellant to M/s. Tata Electric Company and in terms of the agreement dated 14-1-1999 the assets and liabilities were taken over by M/s. Tata Electric Company. When this is the situation, prima facie, the ground raised by Ld. Counsel that the demands cannot be raised against the appellants is sustainable ground. However, as this point was not raised before the lower authorities, we are not recording any findings thereon. Furthermore even if for argument sake if the goods are said to have been removed on sale without payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan of Jamna Auto Industries; that the said stabiliser bar division sold to Jamna NHK was got registered in terms of provisions of Rule 174 and this ground plan was approved. The capital goods namely plant and machinery installed in the premises of stabiliser bar division along with various inputs work in process and the finished goods i.e. stabiliser bars lying therein were also transferred by Jamna Auto Industries to Jamna NHK. It was alleged that Jamna Auto Industries Ltd. had failed to pay excise duty on the plant and machinery, raw materials, work in process materials in respect of which Jamna Auto Industries had availed the Modvat credit and finished goods which was alleged that in terms of provisions of Rule 57S(2)(b) capital goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (21) covers the transfer of inputs lying in a stock with the seller on the date of sale. Similarly capital goods are covered by sub-rule 57S(5) and credit on capital goods is covered by sub-rule (6). In view of these specific provisions covering the change in ownership of the factory, we hold that general provisions of Rule 57F(2) shall not be applicable to the facts of the present case. We, therefore, hold that the case of the appellants is covered by sub-rule (20) and sub-rule (21) of Rule 57F and for the purpose of capital goods and credit in respect of capital goods is covered by sub-rule 57S(b) and sub-rule 57S(6). The demand of duty is, therefore, set aside." We find that these findings were also approved by the Tribunal in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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