TaxTMI 
TaxTMI 
2006 (3) TMI 493
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....period March 1999 to June 1999, they procured capital goods i.e. Rotor/Insurance Spares and availed the benefit of Modvat credit of Rs. 2,13,36,000/- and utilised the same towards payment of duty on their final products. However, the said Rotor assembly was not installed by them in their factory premises and as such was not used in the Captive Power Plant II, for which the same was purchased. The said Captive Power Plant II was subsequently sold by them to M/s. SAIL Power Supply Co. Ltd. during March 2001 at a consideration of Rs. 211 crores. The Rotor/Insurance spares were also sold by the appellant-company to M/s. SAIL Power Supply Co. Ltd. along with the power plant. There is no dispute about the above facts. 2. As a result of ce....
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....ellants, despite the demarcation, the two units continue to remain in the same premises and the conditions of use of the capital goods in the factory of the manufacture of final product is therefore satisfied. They have also contested the reversal of credit on the ground that same was taken originally in accordance with the provisions of Rule 57Q and as such was rightly availed on the strength of valid duty paying documents, the same would become indefeasible. Their main argument is that removal, contemplated under Rule 57AB(1C), is physical removal and not deemed removal. For the above proposition, they have referred to various decisions, which we shall be considering in the subsequent paragraphs. 3. As against the above contention....
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.... removal of capital goods and the appellant would be required to reverse the credit or not. The provisions of Rule 57AB(1C) and sub-rule (1D) are extracted below for ready reference: "Sub-rule (1C) of Rule 57AB as existed on 7-3-2001, the date of transfer of business, reads as under : "when inputs or capital goods, on which credit has been taken are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to such goods on the date of such removal & on the value determined for such goods under Section 4 of the said Central Excise Act & such removal shall be made under the cover of an invoice referred to in Rule 52A." &n....
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....y. The ground plan has been changed and demarcation has been made and as such it cannot be said that merely because no fencing or boundary wall has been created physically between the two units, the Power Plant should be considered as being within the appellant's factory. Considering a hypothetical situation of a unit buying a plot of land immediately next to the appellant's plant and them removing the capital power plant including the disputed capital goods, the same would have been admittedly held to be removed. In the present case, the Captive Power Plant and the disputed capital goods stand removed to the new unit along with the land. Can in such circumstances it had to be held that there is no removal merely because the capital goods h....
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....l Excise Rules, 1944. 9. At this stage, we note the decisions relied upon by the appellant. Strong reliance has been made to the Tribunal's decision in the case of Jammu Auto Industries v. CCE, Indore - 2001 (130) E.L.T. 181 (Tri.). In para 10 of the judgment, the Tribunal has observed that in terms of sub-rules (20) and (21) of Rule 57D, the question of application of Rule 57F(2) does not arise inasmuch as the said sub-rules are self-contained and covers transfer of the credit lying in the books of the seller. However, we find that in that case the issue before the Bench was as regards transfer of the credit on change in ownership of the factory. In the present case, the credit earned by the first appellant cannot be transfer....