TaxTMI 
TaxTMI 
2005 (1) TMI 198
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....t a CT3 Certificate issued by a 100% Export Oriented Unit and whether the duty, if payable, is required to be equivalent to the amount of Modvat credit initially availed of. 2. We heard Shri S. Jayakumar, ld. Advocate for the assessee and Smt. R. Bhaghya Devi, ld. SDR for the Revenue. Ld. Advocate submitted that the assessee manufactured textile machinery and parts thereof; that they also availed Modvat credit of the duty paid on parts purchased from the market; that they are supplying these machineries to 100% EOU; that whenever these 100% EOU needs any spare parts the same is also supplied by them against CT-3 Certificate out of the inputs purchased by them from the market. Ld. Advocate, further, submitted that as per Explanation ....
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.... Bench of the Tribunal in the case of CCE, Vadodara v. Asia Brown Boveri Ltd. - 2000 (120) E.L.T. 228 (Tri. - LB) and contended that the said decision has laid down the policy that on clearance of the inputs duty more than the credit availed of cannot be asked to be paid by an assessee. Reliance has also been placed on the decision in the case of M/s. Eicher Tractors/M/s. Eicher Motors Ltd. v. CCE, Jaipur/Indore - 2004 (175) E.L.T. 277 (T) = 2004 TIOL 478 CESTAT-Del] wherein the Tribunal even under Cenvat Credit Rules, 2001 has held that "What an assessee is required to do when he removes inputs as such can only be to restore the credit, that he had taken". He, therefore, contended that whether under Rule 57AB of the Central Excise Rules, 1....
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....xport goods should be received directly from the manufacturers and therefore the inputs cannot be cleared without payment of duty on the basis of CT-3 Certificate. She also submitted that the Larger Bench decision in Asia Brown Boveri Ltd. will not be applicable after the introduction of Cenvat Credit Rules, 2001 wherein the provisions have undergone a complete change; that sub-rule (4) of Rule 3 of the Cenvat Credit Rules provides that where inputs on which Cenvat Credit has been taken are removed as such, the manufacturer shall pay the amount equivalent to the duty of excise which is leviable on such goods at the rate applicable to such goods on the date of such removal and on the value determined for such goods at the rate applicable to ....
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.... by the assessee. Accordingly they are liable to pay the duty. This was also the decision of the Tribunal in the case of Sidhartha Tubes Ltd. v. CCE, Indore - 2002 (148) E.L.T. 796 (T). 5. The other issue involved in these appeals is whether the duty payable by the assessee will be equivalent to the amount of Cenvat credit initially taken by them. The Larger Bench of the Tribunal in the case of Asia Brown Boveri Ltd. has held that "the requirement of Rule 57F(1)(ii) is for payment of duty on the inputs received for home consumption where the inputs have not been used by the manufacturer. The legal fiction of treating the inputs as having been manufactured by the recipients of the inputs was only to see that the manufacturer restores....
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....tes". The Supreme Court has further observed that "circumstantial flexibility, one additional or different fact may make a word of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper". Now the provisions of sub-rule (4) of Rule 3 of Cenvat Credit Rules clearly provides that when inputs or capital goods on which Cenvat Credit has been taken are removed as such from the factory, the manufacturer of the final product shall pay the amount equivalent to the duty of excise which is leviable on such goods at the rate applicable to such goods on the date of such removal and on the value determined for such goods at the rate applicable to such goods on the date of such removal and on....