TMI Blog2000 (9) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... be on the goods sold which they certainly failed to do". 2.Pursuance to these findings he confirmed recovery of duty on capital goods under Rule 57U(4). He also confirmed recovery of duty on inputs under Rule 57-I(i). He also confirmed recovery of duty on finished goods. He confiscated capital goods and allowed them to be redeemed on payment of fine and also imposed penalty on Noticee No. 1 and Noticee No. 2. Being aggrieved by this order, the appellants have filed these two appeals. 3.The facts of the case are that M/s. Jamna Auto Industries have two divisions. In one Division they manufactured Leaf Springs falling under Chapter Heading 73.20. They manufactured Stabiliser bars falling under Chapter Heading 87.08 in the other division. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to pay Excise Duty on the plant and machinery, raw materials work in process, materials in respect of which M/s. Jamna Auto Industries had availed the Modvat credit and finished goods which was sold to M/s. Jamna NHK at the time of sale of the Stabiliser Bar Division. It was also alleged that in terms of provisions of Rule 57S(2)(b) capital goods are to be removed after being used in the factory for home consumption on payment of duty of excise calculated in the prescribed manner. It was also alleged that in terms of the provisions of Rule 57F(3) all removals of inputs for home consumption are to be made on payment of duty equal to the amount of credit availed in respect of such inputs and under the cover of invoice prescribed under R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... home consumption, export or manufacture of any other commodity in or outside the premises; that entire premises remained as such along with inputs, in process material, finished goods and plant and machinery and that there was no such removal as stipulated in Rule 9. It was pleaded that all the inputs, work in progress as on 1-1-1999 has been converted into finished goods and all finished goods have been sold after payment of appropriate duty; that M/s. Jamna NHK was entitled to credit of duty ought to have been paid by M/s. Jamna Auto Industries and in turn entitled to utilise the same towards payment of duty on finished goods cleared by them and that during the period Jan '99 to March '99, M/s. Jamna NHK has paid duty from PLA to the tune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods. Ld. Counsel, therefore, submitted that the above provisions do not contemplate payment of duty at the time or transfer of inputs because no removal takes place. 7.Ld. Counsel submits that the Rule 57F(3) and Rule 57F(1)(2) contemplated payment of duty if removal of inputs or capital goods takes place. He submits that the removal contemplated in the above Rules is the removal as defined in Rules 9 49 of the Central Excise Rules, 1944. He submits that in the present case, there is no removal as contemplated under Rules 9 49; that it is only a change of ownership of the Stabiliser Bar Division from M/s. Jamna Auto Industries to M/s. Jamna NHK; that the capital goods and the inputs have remained in the same factory premises; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 9 nor Rule 49 are applicable to the facts of the present case. He submitted that Rules 58F(2) is also not applicable to the facts of the present case because there is no removal as contemplated under Rules 9 49 in the instant case. He submits that the case is squarely covered by the provisions of Rule of Sub-rules (20) and (21) of Rule 57F. Ld. Counsel also submitted that in the case of BPL Electronics Ltd. v. CCE Bangalore reported in 1994 (71) E.L.T. 801, this Tribunal held that the goods admittedly have not been removed or cleared from the factory and it is also not disputed that the moulds were intended for utilisation in the further production of excisable goods; that as per Rules 9 39 the fact of its utilisation in the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change in transfer is removal. The contention of the Department is that its removal under the Modvat scheme and is covered by Rule 57F(2). As against this the contention of the appellant is that removal is covered by Rules 9 49 and that under no circumstance, there has been a removal in the instant case in terms of Rules 9 49. It was also contended for the appellants that sub-rule (20) and sub-rule (21) are a self contained code covering both transfer of credits and transfer of inputs and since it was self contained, the question of application of Rule 57F(2) does not arise is applied to the facts of the present case then sub-rule (20) and sub-rule (21) become redundant. We find that there is force in the arguments of the ld. Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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