TaxTMI 
TaxTMI 
2010 (12) TMI 584
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....ing activity of the appellants' company came to standstill by the end of June 2007 and under letter dated 18-7-2007, the appellants surrendered Central Excise registration. The capital goods purchased "during the period from 2003 to 2005 stated to have been used by the appellants were removed in the month of June & July 2007 without payment of any duty and were sold to M/s. Harsh International Khaini Pvt. Ltd. Sonipat on retail invoices in the month of June and July 2007. The capital goods purchased in the years 2003-2005 were removed as such without reversal of the benefit of cenvat credit availed by the appellants at the time of their purchase. 4. The department contending that the removal of the capital goods in the month of June and July 2007 should have been after reversing the cenvat credit availed on those capital goods at the time of their receipt in the factory in terms of Rule 3(5) of the Cenvat Credit Rules, 2004, seized those capital goods; however, the same goods were provisionally released on execution of the bond for the full value and a bank guarantee of Rs. 10 lakh. An amount of Rs. 1,20,690/- was also deposited by the appellants under protest. A show cause....
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....rh v. Raghav Alloys (P) Ltd. reported in 2009 (242) E.L.T. 124 (Tri. - Del.). It was further sought to be contended on behalf of the appellants that the decision of the Tribunal as above was accepted by the Department and, therefore, the Department is not entitled to take a contrary view in identical cases which include the appellants case. Further, referring to the decision of the Supreme Court in the matter of Maruti Suzuki Ltd. v. Commissioner of Central Excise, Delhi-III reported in 2009 (240) E.L.T. 641 (S.C.) and in the matter of CCE v. Gujarat Narmada Fertilizers Co. Ltd. reported in 2009 (240) E.L.T. 661 (S.C.), it is sought to be contended that it is not a case of clandestine removal of goods and there was no intention to evade payment of duty as such and, therefore, there was no justification for imposition of penalty. 7. On the other hand, learned DR has submitted that the law being abundantly clear on the point in issue, the contention about absence of provision of law for reversal of the credit at the relevant time cannot be accepted. Drawing attention to Rule 3(5A) of the Cenvat Credit Rules as was in force since 16-5-2005 the learned DR submitted that the sam....
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....ovider of the output service, as the case may be, shall pay an amount of equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 9". Provided also that if the capital goods, on which cenvat credit has been taken, are removed after being used, the manufacturer or provider of output service shall pay an amount equal to the cenvat credit taken on the said capital goods reduced by 2.5% for each quarter of a year or part thereof from the date of taking the cenvat credit". 10. Plain reading of above provisions of law discloses that at the relevant time, that is, when the capital goods were removed as such from the factory by the appellants, they were required to pay an amount equal to the credit availed by them in respect of such capital goods. Once it is apparent that the appellants had not paid such amount, there was clear violation of the Rule in force at the relevant time. 11. It is, however, the contention on behalf of the appellants that the said provision did not apply to the capital goods which were "used". Plain reading of the provision of law as was in force at the....
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....As far as the decision in Madura Coats is concerned, it is pertinent to note that the same was delivered in a matter where the appeal itself was not maintainable in law as the same was not filed by any aggrieved person or party. That was a case where appeal was filed by the assessee against an order passed by the Commissioner (Appeals) which was in favour of the assessee. This is apparent from the said decision itself, wherein Sh. T. Jayaraman speaking for the Bench has recorded that "Even though the order of the Commissioner (Appeals)'s in favour of the appellants, they have filed this appeal". Indeed in that case the adjudicating authority had confirmed the demand of Rs. 1,35,260/- in relation to the period from March to 31-7-2003 alongwith the interest thereon and penalty of Rs. 50,000/-. Aggrieved by the said order, the assessee had carried the matter in appeal before the Commissioner (Appeals). The Commissioner (Appeals) set aside the demand and observed that there was no specific provision for demand of duty on removal of used cenvated capital goods. However, the assessee had preferred the said appeal. 17. In any case, the decision in Madura Coats Pvt. Ltd. is not in ....