TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 1350
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....ds which were used for providing output service. The Hon'ble Delhi High Court vide order dt.29.3.2011 sanctioned Scheme of Arrangement under Sections 391 and 394 of the Companies Act, 1956 whereby with effect from 1.4.2009, the "Passive Infrastructure Assets" Business of the appellant and 5 other entities of Vodafone group stood transferred and merged in Vodafone Infrastructure Limited, a group company of the appellant. Post such Scheme of Arrangement, the Passive Infrastructure Assets which stood transferred to Vodafone Infrastructure Limited continued to remain in the same premises and continued to be used by the appellant for providing telecommunication service. A show cause notice was issued to the appellant alleging that upon transfer ....
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....nsidered the submissions. 7. Short issue involved in the matter is that as per scheme of merger, the capital goods have been transferred to the group company and the same were used by the appellant for providing output service. It is a fact on record that these capital goods have not been removed from the premises where they were initially installed. In that circumstance, the issue is whether the appellant is required to reverse Cenvat credit or not? 8. The said issue has been examined by this Tribunal in the appellant's own case reported (supra), wherein this Tribunal has observed as under:- "7. Heard the parties and considered the submissions. On careful consideration of the submissions made by both sides, I find that the issue....
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....or manufactured in any place or premises at an intermediate stage and consumed or utilised for the manufacture of another commodity in a continuous process, shall be deemed to have been removed from such place or premises immediately before such consumption or utilisation. Clause (b) of sub-section (4) of Section 4 has defined "place of removal", but it has not defined 'removal'. There can be no doubt that the word 'removal' contemplates shifting of a thing from one place to another. In other words, it contemplates physical movement of goods from one place to another." As per the said decision of Hon'ble Apex Court, for the goods are required to be physically removed, in Cenvat Credit Rules or in Central Excise Act, nowhere removal h....
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....Excise Rules, that such an amount would be payable even in the absence of any physical removal of capital goods. The Hon'ble High Court held that the transaction of sale of the entire power plant to different entity is nothing short of physical removal. However, the respondent has relied upon several case laws in which contra view has been taken. Ld. Counsel has relied on the decision of the Hon'ble Supreme Court in J.K. Cotton Spinning and Weaving Mills Ltd. vs. UOI - 1987 (32) ELT 234 (SC) - 1987-VIL -04-SC-CE=2002- TIOL-559-SC-CX-LB wherein the meaning of the word 'removal' has been examined. The Apex Court held as follows: "There can be no doubt that the word 'removal' contemplates shifting of a thing from one place to another. In ot....
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....redit Rules, 2004. In view of settled legal position regarding need for physical removal of capital goods or inputs, in order to attract the provisions of Rule 3 (5) of Cenvat Credit Rules, 2004, we find that there is no justification to invoke such provision to demand and recover any amount from the appellant in this case. As such, we find no justification for the confirmation of demand towards capital goods. The same reasoning is applicable to the recovery of amount for the inputs amounting to Rs. 91,76,449/-. The demand towards such recovery is also not sustainable. There is no allegation or finding regarding any irregular credit availed on inputs or capital goods or usage of these goods for other than approved purposes." 13. We also ....