2021 (5) TMI 804

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....he petitioner therefore entered into negotiation with M/s.OPC Assets Solutions Private Limited which is a finance enterprise. As per the agreement between the parties, the petitioner was to sell their plant and machinery for a particular consideration. The financier was to enter into Master Rent Agreement with the petitioner, thereby, leasing the sold out assets. Such a Master Rent Agreement was entered into between the parties on 25.02.2013 but came into effect on 01.04.2013. The petitioner sold the plant and machinery as evidenced by the Commercial Sale Invoice dated 22.03.2020 in favour of M/s. OPC Assets Solutions Private Limited for a sum of Rs. 55,30,00,000/-. While so, the respondent herein issued show cause notice No.6 /2016, dated ....

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....here is again no dispute that with effect from 01.04.2013, the sold out assets, plants and machinery were leased back in favour of the petitioner by M/s.OPC Assets Solutions Private Limited. The authority has proceeded on the footing that as a result of these transactions, there was a deemed removal of goods from the factory premises of the petitioner herein and therefore, excise duty became leviable. It was from that perspective, the reversal of CENVAT came to be made. 5.The core contention of the petitioner's counsel is that the Central Excise Act does not contemplate any deemed removal. Only if there is physical removal of the capital goods / assets from the factory premises, excise duty can be levied and not otherwise. In this reg....

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....ad on 21.08.1998 and in which the engine assembly on ground flour in the premises of Majestic Auto Limited was clearly demarcated. The plant and machinery was installed and was never removed from the premises. The I.C. Engines manufactured by HBSA Pvt. Ltd., in the same premises were used by the appellant. Once it was admitted that the capital goods, on which, Modvat Credit was taken by the appellant remained installed in the same premises, which was leased out and continued to be engaged in the manufacture of I.C.Engine, which was further used in the manufacture of two wheelers and that a separate registration certificate was obtained by HBSA Pvt., Ltd., there was no removal of goods. The capital goods remained installed in the same premis....

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....t is in agreement with the view expressed by the Allahabad High Court in the above-cited decision and the above decision is squarely applicable to the facts of the present case. In view of the above, the interpretation with regard to Rule 3(5) of CCR, 2004, as made by the Tribunal in the present case is fully justified and it calls for no interference at the hands of this Court." 7.My attention is drawn to Circular No.1063/2/2018-CX, dated 16.02.2018, issued by the Central Board of Excise and Customs, in which, it has been stated that the Department has accepted the aforesaid decision of the Madras High Court. The contention of the petitioner's counsel is that the respondent is squarely bound by the decision rendered by the Madras High....