TaxTMI 
TaxTMI 
2024 (4) TMI 227
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....e are that the appellant is engaged in providing cellular telephone services and has laid out optical fibre cables system across their telecom area in Kolkata. 2.1 Another division of the appellant is engaged in providing national and international long-distance service and for rendering the said telecommunication service, LDBU Mumbai requires optical fibre network across India including Kolkata. 2.2 In view of the above, the appellant and its other unit i.e. Vodafone South has entered into a Memorandum of Understanding so as to enable the said unit to use optical fibre laid down in Kolkata. 2.3 It is noted that optical cable fibres consist of number of pairs of fibre and constitute capital goods. In the present case, the appellant allow....
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.... under : "7. Heard the parties and considered the submissions. On careful consideration of the submissions made by both sides, I find that the issue to be decided by me is, whether the appellant is required to reverse the Cenvat credit on transfer of capital goods to their sister unit, in terms of Rule 3(5) of Cenvat Credit Rules, 2004 or not The ld. Counsel for the appellant relied on various judicial pronouncements. Therefore, the issue is to be decided whether in terms of Rule 3(5) of Cenvat Credit Rules, 2004 the capital goods are required to be physically removed or mere transfer can be said that goods have been removed. The said issue has been examined by the Hon'ble Apex Court in the case of J.K. Spinning and Weaving Mills Limi....
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....39;ble Apex Court, for the goods are required to be physically removed, in Cenvat Credit Rules or in Central Excise Act, nowhere removal has been defined. Therefore, the verdict of Hon'ble Apex Court is binding on me. Moreover, the decision of Associated Cement Co. Limited (supra) was examined by this Tribunal in the case of Bhilai Steel Plant (supra) wherein this Tribunal observed as under:- Jam, Id. Advocate for the respondent. "10. Ld. A. R. submits that in terms of Rule 3(4) of the Cenvat Credit Rules, the payment of an am6untequiv`lent to the credit availed on capital goods is required to be made inasmuch as the power plant stands sold to M/s BESCL even though there is no physical removal of goods even after sale. He argued t....
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....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. In the Tribunal decision in the case of L.G. Balakrishnan and Bros. Limited (supra), the Tribunal has examined a similar question as is before us and considered the meaning of the word removal as explained by the Hon'ble Supreme Court and held as under: "10. In view of the above settled decision, we find that the provisions of Rule 3 (5) are not attracted in the present case. The original authority's attempt to distinguish the above findings is not appropriate. He found that these decisions are regarding change of ownership of whole factory whereas here only a part of the facto....
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....goods or usage of these goods for other than approved purposes." 13. We also note that the Tribunal has taken similar view in all the cases cited by the respondent. The Tribunal decision cited in the case of Steel Authority of India Limited - 2007 (219) ELT 960 (Tri-Del.) - 2007-VIL-60-CESTAT-DEL-CE has dealt with identical facts pertaining to another unit of respondent at Rourkela. We also note that the respondent has cited similar decision from the Hon'ble Allahabad High Court as well as Madras High Court." Further, I find that after the decision of Associated Cement Co. Limited, the Hon'ble Karnataka High Court itself has examined the issue again in the case of Commissioner Vs. Ultra Tech Cement Limited - 2015 (321) ELT A150 (Kar.)....