TMI Blog2010 (6) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/2010-SM(BR)(PB) - Dated:- 24-6-2010 - Shri M. Veeraiyan, J. REPRESENTED BY : Shri S.N. Singh, Jt. CDR, for the Appellant. Shri Ravi Chopra, Advocate, for the Respondent. [Order]. This is an appeal by the Department against the order of the Commissioner (Appeals) No. 397/CE/Appl/Ldh/2007 dated 1-1-2008 by which the order of the original authority dated 6-2-2007 which was in favour of the party was upheld. 2. Heard both sides. 3. The relevant facts, in brief, are that the respondent was manufacturing polyester yarn and acrylic yarn which were subject to duty. They received capital goods namely, Machinery Draw Frame and took credit of Rs. 2,78,284/- in two instalments as provided for. The capital goods were installed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be termed as a clearance of capital goods as such . Therefore, the party is liable to pay an amount equivalent to the credit availed thereon under the provisions of Rule 3(5) of the Rules. Therefore, in these circumstances, the appellate authority has erred in holding that as such means that the capital goods have been removed without putting into use. 4.2 He also submits that the observations of the appellate authority that clearances of the capital goods was effected when the party was working under the exemption Notification No. 30/2004-C.E. dated 9-7-2004 and were not registered with the Central Excise Department are erroneous inasmuch as that the Notification in question provides exemption of payment of duty only to the finish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions from both sides. In the present case, undisputedly, the capital goods have been installed in the premises of the respondents and were put to use. The phrase cleared as such has been interpreted by the Tribunal in the case of Salona Cotspin Ltd. v. C.C.E., Salem reported in 2006 (201) E.L.T. 592 wherein it has been held that the goods removed after use cannot be treated as cleared as such . Similarly, in the case of Cummins India Ltd., the Tribunal following the decision of the Tribunal in Madura Coats Ltd. has held that the capital goods removed after putting them to use cannot be held as removed as such . This decision stands upheld by the Hon ble High Court of Mumbai. In view of the above, I do not find any merit in the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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