2013 (12) TMI 82

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.... arise for consideration are that the respondents are manufacturers of PVC pipes falling under Chapter 39 of the Schedule of the Central Excise Tariff Act, 1985. They had taken cenvat credit on certain capital goods during 2004 and 2005 and they had removed such capital goods vide invoice dt. 26.6.2006 by paying duty on transaction value. Revenue was of the view that as per Rule 3 (5) of Cenvat Credit Rules 2004 when capital goods on which Cenvat credit had been taken were removed from the factory, the manufacturer of the final product shall pay an amount equal to the credit availed in respect of such capital goods. A show cause notice was issued in this regard demanding difference between credit taken and duty paid on transaction value at ....

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....nt High Courts in the following cases:-    1. Commissioner v. Cummins India Ltd. - 2009 (234) E.L.T. A120 (Bom.)]    2. CCE Chandigarh Vs Raghav Alloys Ltd. - 2011 (268) ELT 161 (P&H);    3. CCE Salem Vs Rogini Mills Ltd. - 2011 (264) ELT 367 (Mad.) and    4. Harsh International (Khaini) Pvt. Ltd. Vs CCE - 2012 (281) ELT 714 (Del.). 4. In all the above decisions, the view taken is that when capital goods are removed after use, it cannot be considered as a case of removal of goods "as such" for the purpose of reversing the entire credit taken at the time of receiving the capital goods as prescribed in Rule 3 (5) of CCR 2004. 5. However, on the question whether there is any need for re....

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....ion was under: 57S. Manner of utilisation of the capital goods and the credit allowed in respect of duty paid thereon. - (1) The capital goods in respect of which credit of specified duty has been allowed under rule 57Q may be -    (i) used in the factory of the manufacturer of the final products; or    (ii) removed, after intimating the Assistant Commissioner of Central Excise, having jurisdiction over the factory and after obtaining dated acknowledgement of the same, from the factory for home consumption or for export, on payment of appropriate duty of excise leviable thereon or for export under bond, as if such capital goods have been manufactured in the said factory.    (2) In a case, - &nbsp....

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.... to the effect that credit amount to be reversed will be reduced by 2.5% per quarter of use of the machinery. 9. After 13-11-2007 the applicable provisions read as under: With effect from 13.11.2007, the following provision has been introduced in Rule 3 (5) ibid. 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 per cent for each quarter of a year or part thereof from the date of taking the Cenvat Credit. 10. The use of capital goods is to spread over many years. A decision to the effect that assessees can bring in capital goods, use....