2017 (8) TMI 831

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....sed capital goods cleared on transaction value. Briefly the facts of the case are that the appellant had availed cenvat credit on capital goods viz., Hydrolic Scisor Table to the tune of Rs. 23,664/- (Rupees Twenty Three Thousand Six Hundred and Sixty Four only) during September 2006 and April 2007. They cleared the same to M/s. MAS Furniture Mysore without payment of duty vide invoice no.51 dated 10.05.2007. As per Rule 3(5) of Cenvat Credit Rules 2004 when cenvated capital goods are cleared as such, then credit should be reversed. Hence a show-cause notice dated 03.06.2008 was issued demanding the same with interest and penalty. The original authority vide impugned order confirmed the demand with interest and penalty. Aggrieved by the ori....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....isions: a) Jaypee Bela Plant Vs. Commr. of C. Ex & ST, Bhopal - 2017 (345) ELT 542 (Tri. -Del.) b) Power Plastech Pvt Ltd. Vs. CCE, Bangalore - Final Order No.20269/2017 in Appeal No.E/811/2008 c) Madura Coats Pvt Ltd Vs. Commissioner of Central Excise, Tirunelveli - 2005 (190) E.L.T. 450 (Tri. -Bang.) d) Cummins India Ltd Vs. Commissioner of C. Ex. Pune Ill - 2007 (219) ELT 911 (Tri-Mum,) affirmed by Hon'ble High Court in 2009 (234) ELT A120 (Bom.) 4. On the other hand the learned AR reiterated the findings of the impugned order. 5. After considering the submissions of both the parties and after going through the judgments cited at the bar, I find that the only question which needs to be decided in the present case is whether the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e case of Commissioner of Central Excise, Ludhiana v. Khalsa Cotspin (P) Ltd., reported in 2011 (270) E.L.T. 349 (P & H) has held as under : "The assessee having validly availed cenvat credit, same is required to be reversed only if goods were cleared in the same position without payment of excise duty. In the present case, it has been held by the Tribunal that goods were not cleared in the same position but after having been used and in such situation Rule 3(5) of the Rules will not apply." 12. Bombay High Court in the case of Cummins India Ltd. v. Commissioner of Central Excise, Pune-III reported in 2007 (219) E.L.T. 911 (Tri.-Mumbai) confirmed the order of the Appellate Tribunal which has held as under : "The plain and simple meaning....