TMI Blog2005 (1) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has not been complied with and accordingly the benefit of Notification No. 1/95-C.E. is not available to the impugned goods cleared 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). Whether the duty payable by the assessee will be equivalent to the amount of Cenvat credit initially taken by them - There is no force in the submission of the ld. Advocate that as the assessee is not the manufacturer no new rate of duty or value can be determined for the purpose of levying the duty. The reason is very clear because the assessee has been made eligible to bring the inputs and take the Cenvat credit of the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 to Rule 57AB of the Central Excise Rules, 1944 when inputs are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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, 1944 or under Rule 3(4) of Cenvat Credit Rules, 2001, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore 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 such goods on the date of removal and on the value determined under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the original position by debiting the same rate of duty at which he had taken the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal 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 the value determined for such goods under Section 4 or Section 4A of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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