2015 (10) TMI 1984

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....sing the plant and machinery acquired for manufacturing, the appellant vide their letter dated 31/05/2007 informed the Range Superintendent that they have closed their manufacturing operations with effect from 06/01/2007 and they intended to remove their useable and un-useable materials, finished goods, scrap, etc. on payment of required excise duty. It was also informed that they were in the process of selling of their plant and machinery and other fixed assets, as the appellant had not claimed the Cenvat credit on the capital goods at the time of acquisition from OTIS Elevator Co. (I) Ltd., they would sell these equipment/machines on their normal commercial invoice, without charging/reversing any excise duty thereon. List of equipment/mac....

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....ice along with interest and penalty of Rs. 50,000/- imposed under Rule 25 of the CER 2002. Being aggrieved by the order, the appellant preferred an appeal before the Commissioner (Appeals), who vide impugned order upheld the levy on the transaction value relying on the decision in the case of CCE Chandigarh Vs. Raghav Alloys (P) Ltd., reported in 2009 (242) ELT 124 (Tri-Del) and 2011 (268) ELT 161 (P&H). Being aggrieved by the order, the appellant is before this Tribunal. 3. The learned Counsel for the appellant pointed out that there have been a change in the legal provisions/Rules with regard to the removal of capital goods. Prior to 01/03/2003 Rule 3 (4) of Cenvat Credit Rules 2001 provided - when inputs or capital goods, on which Cen....

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....w-cause notice. Further 2.5% per quarter works out to 10% per year and as 10 years or more have crossed since the date of acquisition, it will amount to 100% allowance of the Cenvat credit under the proviso to Rule 3 (5) of the Cenvat Credit Rules, 2004. It is further contended that the proviso being by way of clarification, will apply and accordingly, the revenue is not justified in demanding any duty based on the transaction value. The learned Counsel further relies on the decision of the Honble Delhi High Court in the case of Harsh International (Khaini) Pvt. Ltd., Vs. CCE 2012 (281) ELT 714 (Del) wherein the Hon'ble High Court in the case of machinery transferred during June-July 2007, after use of two to four years held that - no Cenv....