TMI Blog2010 (4) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... use over a period of time, the same has become in-serviceable and fit to be scrapped. The object of Cenvat Credit on capital goods is to avoid the cascading effect of duty. If even after use for a couple of years, the Cenvat Credit is required to be reversed then it would certainly defeat the object of the scheme. To avoid misuse of the scheme in the Rules, it has been provided that if the machines are cleared as such the Assessee shall be liable to pay duty equal to amount of Cenvat Credit availed. The machines which are cleared after utilization cannot be treated as machines cleared as such. - . The machine cleared after putting into use for nine years cannot be treated as Cleared ‘as such’. Insertion of proviso w.e.f. 13.11.2007 makes i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority i.e. Deputy Commissioner confirmed the demand and further imposed equal amount of duty under Section 11AC/Rule 13 of the Rules. The Respondent preferred an Appeal before the Commissioner (Appeals) and Commissioner (Appeals) relying upon Board Circular dated 01.07.2002 allowed Appeal of the Respondent. The Revenue preferred an Appeal before the Tribunal and the Tribunal ex-parte allowed Appeal of the Revenue. The Respondent-Assessee approached this Court and this Court vide Order dated 19.08.2008 set aside Tribunals' Order and directed the Tribunal to decide Appeal afresh after hearing the Respondent. 4. The Tribunal vide its Final Order dated 23.04.2009 has dismissed Appeal of the Revenue holding that the Respondent has paid co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of Tribunal in the case of Cummins India Limited, which has been upheld by Bombay High Court deals with provisions of Rule 3 (4) (c) and does not consider the provisions of Rule 4 (5) (a). The Larger Bench of the Tribunal has considered the provisions of Rule 4 (5) (a) and not Rule 3 (4) (c) whereas the present case is with respect to Rule 3 (4) of the Rules. So the case of Respondent is scarcely covered with the earlier decision of the Tribunal, which has been upheld by the Bombay High Court. 8. We have heard arguments of both the Ld. Counsel. The Tribunal has rightly noted that unlike inputs, which get consumed 100% with the same are taken up for use in relation to manufacture of finished goods, capital goods are used over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as Cleared 'as such'. Insertion of proviso w.e.f. 13.11.2007 makes it clear that there is difference between machines cleared without putting into use and cleared after use. The Bombay High Court has upheld the view of the Tribunal in the case of Cummins India Limited Vs. CCE, Pune-III, 2007 (219) ELT 911 (Tri. - Mumbai). The Tribunal in the case of Nahar Fibres has also dismissed Appeal of the Revenue and there is nothing to show that the said decision of the Tribunal has been set aside by any Court. In these circumstances, we are of the considered opinion that the Appeal of the Revenue is bereft of merits so deserves to be dismissed. The questions raised by Revenue are answered in favour of Assessee and Appeal is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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