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2006 (3) TMI 493 - AT - Central ExciseCenvat/Modvat - Capital goods not installed and used - HELD THAT:- In the present case, admittedly the entire Captive Power Plant II has been sold, along with the disputed Modvatable capital goods. The effect of such sale would be that the same have been removed from the appellant’s factory. The ground plan has been changed and demarcation has been made and as such it cannot be said that merely because no fencing or boundary wall has been created physically between the two units, the Power Plant should be considered as being within the appellant’s factory. We note the decisions relied upon by the appellant Strong reliance has been made to the Tribunal’s decision in the case of Jammu Auto Industries v. CCE, [2000 (9) TMI 146 - CEGAT, NEW DELHI], observed that in terms of sub-rules (20) and (21) of Rule 57D, the question of application of Rule 57F(2) does not arise inasmuch as the said sub-rules are self-contained and covers transfer of the credit lying in the books of the seller. However, we find that in that case the issue before the Bench was as regards transfer of the credit on change in ownership of the factory. In the present case, the credit earned by the first appellant cannot be transferred to the second inasmuch as the second unit is only manufacturer of electricity, which is not liable to pay Central Excise duty. We would like the dispute to be resolved by a Larger Bench. The Registry is therefore directed to place the papers before the Hon’ble President for constituting a Larger Bench. However, it is made clear that the other related issues as regards the valuation of the Rotors/insurance spares or imposition of penalty are left open for decision, after the decision by the Larger Bench on the main disputed issue.
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