AI Drafter 
TaxTMI 
TaxTMI 
2018 (7) TMI 779
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....dhra Pradesh. Such transfer involved transfer of capital goods from Coimbatore unit to the Hindupur unit. Department took the view that these transfers would amount to 'removal of capital goods as such‛ attracting provisions of Rule 3 (5) of the Cenvat Credit Rules, 2004 (CCR) requiring the appellants to pay up an amount equal to the cenvat credit availed on the said goods. Accordingly, show cause notice dt. 05.03.2008 was issued, inter alia proposing demand of an amount of Rs. 26,30,746/- with interest thereon and imposition of penalty under Rule 15 (1) of the CCR. These proposals were confirmed by the original authority vide an order dt. 10.09.2008. In appeal, the Commissioner (Appeals) dt. 26.02.2009 set aside the penalty imposed b....
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....tral Excise/Assistant Commissioner of Central Excise. The SCN admits that "here capital goods are not cleared as waste & scrap but as machines (capital goods) which are in working condition and are put to use for taking production in their factory at Hindpur". Therefore, the requirement under Rule 10(3) stands satisfied. iii) Rule 3(5) of CCR requires payment of an amount equivalent to Cenvat credit if the capital goods are removed 'as such'. The use of term 'as such' clearly indicates that clearance of unused capital goods only is covered under Rule 3(5) and not capital goods which was already put to use before clearance. In the present case, it is not disputed that the capital goods transferred to Hindpur Factory were already used by t....
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.... removals, Rule 3 (5) of the CCR would only be applicable which requires the appellant to pay back the credit availed on the capital goods at the time when they were brought into their factory. 6.1 We are unable to fathom such a conclusion. True, Rule 3 (5) of CCR does require the manufacturer of final products to pay amount equal to credit availed in respect of the inputs or capital goods removed. However, the impugned removals are not in the nature of removal of goods for sale or to other buyers or stock transfer etc. On the other hand, these capital goods have been removed only on account of closing down of the existing unit at Coimbatore and its shifting to the Hindupur. 6.2 Rule 10 of the CCR has laid down special provisions for ....
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....edit has been availed of are duly accounted for to the satisfaction of the Deputy Commissioner of Central Excise or, as the case may be, the Assistant Commissioner of Central Excise." 6.3. Evidently then, Rule 10 is a special provision within the same CCR 2004 specifically given for such situations. Hence by the maxim of Generalia Specialibus Non Derogent, the provisions of Rule 10 will take precedence and override the general provisions in respect of removal of capital goods found in Rule 3 (5) ibid. In our considered opinion therefore, the provisions of Rule 10 alone will have direct bearing in respect of these removals. 6.4 We also find that conditionalities of Rule 10 given in sub-rule (3) have also been complied with. Hence appel....
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....ed in favour of the assessee and against the Revenue." The Tribunal in Jamna Auto Industries Ltd. Vs CCE Indore - 2001 (130) ELT 181 (Tri.-Del) while considering an identical issue under the erstwhile Central Excise Rules, 1944 has held as under : "10.We have heard the rival submissions. On careful consideration of the submissions made, case law cited and the evidence on record, we note that the issue is whether change in transfer is removal. The contention of the Department is that its removal under the Modvat scheme and is covered by Rule 57F(2). As against this the contention of the appellant is that removal is covered by Rules 9 & 49 and that under no circumstance, there has been a removal in the instant case in terms of Rul....