TaxTMI 
TaxTMI 
2017 (11) TMI 22
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.... as under:- "2.1 Acting on the specific intelligence/information that the notice is removing capital goods without discharging duty liability, the officers of Preventive Branch, Central Excise Hqrs., Indore visited the factory premises of the Noticee on 14.04.2009 and found that used capital goods (plant & machinery) loaded in trucks were ready for dispatch. On verification of sale invoice No.1 dated 10.04.2009 to be issued for the sale of the above said capital goods, it is revealed that the capital goods were being removed as scrap assessing nil duty i.e. without payment of duty of M/s Makwana Chemi-Equip. Pvt. Ltd., Plot No. A-290, TTC Industrial Area, Mahape, Navi Mumbai. 2.2 The officers on reasonable belief that the goods were b....
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....ap have been sent for weighment without any invoice/challan or any other documents showing movement of capital goods for the purpose of weighment. 2.3 In order to ascertain as to whether the appellant has availed any CENVAT on the goods in question, the capitalization details were called for and subjected to scrutiny. On scrutiny of the capitalization details it is revealed that the notice had Cenvat credit of Rs. 47,04,776/- in the year 199798. On further enquiry the appellant vide their letter No.NFIL/DWS/Sales/279 dated 23.07.2011 submitted capitalization statement pertaining to addition to asset during the period 1998-99 to 2009-10 and informed that they had availed cenvat credit of Rs. 31,549/- and Rs. 2,04,980/- in the year 1999-20....
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....Central Excise duty therefore the Central Excise duty was calculated considering cum duty price method. Thus the appellant had paid a total Central Excise duty of Rs. 28,92,830/- on 17.04.09 on the clearance of scrap of the contravening capital goods valued at Rs. 3,51.07,169/-. 2.7 Shri Ajay Pandey Manager (Maintenance) in his statement dated 14.04.09 made all efforts to mislead the investigation by stating that they had not availed any credit of duty paid on the contravening capital goods. Hence, they were removing the same without payment of duty, wheras, on verification of the relevant records of the appellant, it found that: (i) The Cenvat credit amounting to Rs. 49,41,105/- had been availed on the said capital goods. ....
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....11AC of the Central Excise Act, 1944 read with Rule 15 of the Cenvat Credit Rules, 2004." 3. The show cause notice was adjudicated by the Additional Commissioner on contest and accordingly, confirmed and appropriated the amount already deposited, as follows:- "a) The demand of Central Excise duty of Rs. 16,48,189/- in terms of Section 11A of the Central Excise Act, 1944 read with Rule 3(5) of the Cenvat Credit Rules, 2004 was confirmed. b) The balance amount of Rs. 12,44,641/- paid and collected by the appellant as Central Excise duty in terms of Section 11D of the Central Excise Act, 1944, was also confirmed. c) The amount so collected was ordered for appropriation against the payment already made by the Appellant." 4. Being....
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....Member Bench of this Tribunal in the case of Siddharth Polysacks Pvt. Ltd. Vs Commissioner of Central Excise & Service Tax reported at 2015 (315) ELT 419 (Tri.-Del.) wherein it was held that in case of removal of an asset prior to 27^th February, 2010, the reversion of Cenvat credit availed on capital goods shall be on straight-line method. Prior to 27^th February, 2010 there was no express provision of law. It does not apply to common sense, as to the reason why appellant shall suffer in absence of clarity in law and when ambiguity was resolved by legislature, by way of clarification on 27.02.2010, prescribing the straight-line method. The learned Counsel have also urged that the provisions of Section 11 D of the Central Excise Act, are no....
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....on the said capital goods, as reduced by 2.5% for each quarter of failure or part thereof, from the date of taking credit. Thus, the duty worked out at Rs. 16,40,189/- in terms of Section 11A of the Act read with Rule 3(5) of Cenvat Credit Rules have been rightly confirmed. Further, the balance amount deposited (Rs.28,92,830-Rs.16,48,189/-) or Rs. 12,44,641/- have been rightly demanded under Section 11B of the Central Excise Act. 7. Having considered the rival contentions, we find that it is an admitted fact that the appellant have cleared/used capital goods which are further usable for another manufacture. Accordingly, we hold that under the provisions of Rule 3(5) of Cenvat Credit Rules, 2004, the appellant is entitled to deduction of ....