Modvat credit on capital goods survives absent physical removal; penalty is limited where duty and interest were paid early.

Modvat credit on capital goods cannot be denied merely because the goods were linked to a transfer of the factory or plant and machinery, where there was no actual physical removal from the assessee's factory. On that basis, credit was allowed for the disputed capital goods. Penalty under Rule 57U(6) was treated as pari materia with Section 11AC, and where duty and interest had been paid before the show-cause notice, the reduced penalty regime applied. The penalty was therefore confined to 25% of the ineligible credit, with no penalty on the credit found admissible.

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Issues: (i) Whether Modvat credit was admissible in respect of capital goods alleged to have been transferred without actual physical removal from the factory; (ii) Whether penalty under Rule 57U(6) was confined to 25% of the ineligible credit amount where duty and interest had been paid before the show-cause notice.

Issue (i): Whether Modvat credit was admissible in respect of capital goods alleged to have been transferred without actual physical removal from the factory.

Analysis: Credit cannot be denied merely because the capital goods were associated with a transfer of the factory or plant and machinery to another entity, where there is no actual or physical removal from the assessee's factory in the sense required for disallowance. The reasoning follows the view that, in the absence of physical removal, credit remains available.

Conclusion: Modvat credit of Rs. 1,74,987/- was held admissible to the assessee.

Issue (ii): Whether penalty under Rule 57U(6) was confined to 25% of the ineligible credit amount where duty and interest had been paid before the show-cause notice.

Analysis: Rule 57U(6) was treated as pari materia with Section 11AC of the Central Excise Act, 1944, and the penalty framework was applied on the basis that prior payment of duty and interest entitled the assessee to the reduced penalty regime. The ineligible credit already accepted as not admissible therefore attracted only 25% penalty.

Conclusion: Penalty was restricted to 25% of Rs. 7,67,080/-, and no penalty was payable on the amount of Rs. 1,74,987/- that was found admissible.

Final Conclusion: The appeal succeeded in part by allowing the disputed credit to the extent of Rs. 1,74,987/- and by reducing the penalty to 25% of the remaining ineligible credit amount.

Ratio Decidendi: Where capital goods are not actually physically removed, Modvat credit cannot be disallowed on that ground alone, and where the penalty provision is pari materia with Section 11AC, reduced penalty applies when the statutory conditions for concession are satisfied.

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