TaxTMI 
TaxTMI 
2019 (1) TMI 1380
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....echnoplast, carrying out its operation from the same premises where the appellant's unit is situated. Vide Annexure I series all dated 09.10.2011 appellant received from M/s. Sanjay Moulds and dyes as capital goods for Rs. 1,80,46,000/- and availed cenvat credit of Rs. 18,58,737/- in respect of excise duty paid on such capital goods. Subsequently it delivered those capital goods vide challan dated 17.10.2011 as per Rule 4(5)(b) of Cenvat Credit Rules 2004. Further, in order to recover cost from General Motors, the appellant raised tax invoice on 19.12.2011 on General Motors with assessable value of Rs. 1,94,00,000/- along with VAT component @ 12.5% of Rs. 24,25,000/-. 2.1. Further, case of the appellant is that ownership of the moulds and dyes was transferred to General Motors as a set of tools on the commercial invoice but its possession remained with M/s. Sanjay and therefore it was never removed from the premises of the appellant, but vide audit report dated 22.08.2014 the respondent department had observed that appellant availed cenvat credit of Rs. 18,58,737/- on purchase of moulds and dyes and sold those goods to General Motors on 19.12.2011 for which appellant was not to ....
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....iation as the ownership of goods lies with some other person was unjustified. Further it has been submitted by learned counsel that cenvat credit is to be computed on the basis of table provided under 5(a) after removal of capital goods being used. Learned Commissioner has ignored the fact that the actual removal had taken place in 2015 and not in 2011 itself. In placing reliance on the judicial decision reported in 2008 (224) ELT 484 (T-Chennai), 2015 (323) ELT 290 (Mad), 2015 (329) ELT 529 (T-Del), 2016 (332) ELT 895 (T-Del), 2017 (351) ELT 129 (P&H) and several other decisions, Learned counsel for the appellant argued that in similar circumstances, even upon sale/ leasing out factory, there is consistent finding that date of actual removal is the determining factor. Further arguing that entire exercise in the present case is revenue neutral as the said duty paid on mould and dies was to be available as cenvat credit to General Motors and having regard to the fact that alleged evasion of the duty was on the basis of audit, Learned counsel submitted that the stand of the department justifying extended period does not stand the test of scrutiny of law for which the order passed by ....
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....f Act, in respect of capital goods shall be allowed immediately on receipt of the capital goods in the factory of a manufacturer :] [Provided also that where an assessee is eligible to avail of the exemption under a notification based on the value of clearances in a financial year, the CENVAT credit in respect of capital goods received by such assessee shall be allowed for the whole amount of the duty paid on such capital goods in the same financial year. Explanation. - For the removal of doubts, it is hereby clarified that an assessee, shall be "eligible", if his aggregate value of clearances of all excisable goods for home consumption in the preceding financial year, computed in the manner specified in the said notification, did not exceed rupees four hundred lakhs.] (b) The balance of CENVAT credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, or in the premises of the provider of output service, if the capital goods, other than components, spares and accessories, refractories and refractory materials, moulds and dies and goods falling under [heading 6805, grinding wheels ....
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....pital goods is sent to job worker provided the same is received back in the factory within 180 days of their being sent to job worker. Sub-rule 5(b) which is applicable to the instant case does not prescribe such 180 days stipulation in availing such credit. Therefore, even if the moulds and dies are kept with job worker for production of goods on behalf of manufacturer, such credit can be availed for an indefinite period. A conjoint reading of these two provisions indicate that as because in the case of mould and dies only 50% credit is available and apparently keeping that in mind legislatures have put no stipulated time period for return of the goods to the manufacturer like within 180 days since in other cases of capital goods except those components stated above, entire cenvat credit is available which can be availed in two years while for dies and moults, it is 50% of the duty paid in the first year and not on any subsequent years. In the appellant's case entire cenvat credit was availed by it though it removed the same to the seller to whom it has put in the category of job worker. 9. Consequent upon such removal to another factory though available in the same premises, w....