TMI Blog2010 (12) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... SENTED BY : Ms. Seema Jain, Advocate, for the Appellant. Shri Sunil Kumar, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. By consent appeals and applications are taken up for final disposal without insisting for pre-deposit of the amount demanded under the impugned order. 2. We have heard at length the learned Advocate for the appellants and learned DR for the respondent and we have also perused the written submissions filed by both the parties. 3. The appellants are engaged in manufacture of chewing tobacco. They have availed cenvat credit to the tune of Rs. 58,74,364/- being the amount equivalent to the basic excise duty and Rs. 13,674/- paid towards cess on the capital goods stated to be purchased during the period from 2003 to 2005. The manufacturing activity of the appellants company came to standstill by the end of June 2007 and under letter dated 18-7-2007, the appellants surrendered Central Excise registration. The capital goods purchased during the period from 2003 to 2005 stated to have been used by the appellants were removed in the month of June July 2007 without payment of any duty and were sold to M/s. Harsh I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules submitted that the legal provisions prevalent at the relevant time did not provide for reversal of the cenvat credit on removal of used capital goods. According to the learned Advocate, this was also recognized by the judicial pronouncement of the Tribunal and in that regard drew our attention to the decision of the Tribunal in the matter of Madura Coats Pvt. Ltd. v. Commissioner of Central Excise, Tirunelveli reported in 2005 (190) E.L.T. 450 (Tri. - Bang.), Cummins India Ltd. v. Commissioner of C. Ex., Raigad reported in 2007 (219) E.L.T. 911 (Tribunal), Commissioner v. Cummins India Ltd. reported in 2009 (234) E.L.T. A120 of the Bombay High Court, CCE, Coimbatore v. L.G. Balakrishnan Bros, reported in 2009 (238) E.L.T. 659 (Tri. - Chennai) and Commissioner of C. Ex., Chandigarh v. Raghav Alloys (P) Ltd. reported in 2009 (242) E.L.T. 124 (Tri. - Del.). It was further sought to be contended on behalf of the appellants that the decision of the Tribunal as above was accepted by the Department and, therefore, the Department is not entitled to take a contrary view in identical cases which include the appellants case. Further, referring to the decision of the Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, w.e.f. 6-5-2005 the provision of law in this regard which was in force read thus :- When inputs or capital goods, on which cenvat credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final products or provider or output service, as the case may be, shall pay in amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 9. 9. The said Rule was changed w.e.f. 13-11-2007 and read thus :- When inputs or capital goods, on which cenvat credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final products or provider of the output service, as the case may be, shall pay an amount of equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 9 . Provided also that if the capital goods, on which cenvat credit has been taken, are removed after being used, the manufacturer or provider of output service shall pay an amount equal to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd, Cummins India Ltd., L.G. Balakrishnan Bros. and Raghav Alloys (P) Ltd. in support of the said contention. 14. Once the Larger Bench has decided the point in relation to the scope of the expression as such , any decision of the Division Bench or of the Single Member cannot be binding on this Tribunal. That apart, the decision in Cummins India case related to the period prior to 16-5-2005. As regards the decision in Raghav Alloys (P) Ltd. is concerned the same related to the removal of the goods in May 2003. Besides single Member decision cannot override the Larger Bench decision. 15. As regards the decision in L.G. Balakrishnan Bros. case that was entirely on the basis of the decision in Madura Coats case. 16. As far as the decision in Madura Coats is concerned, it is pertinent to note that the same was delivered in a matter where the appeal itself was not maintainable in law as the same was not filed by any aggrieved person or party. That was a case where appeal was filed by the assessee against an order passed by the Commissioner (Appeals) which was in favour of the assessee. This is apparent from the said decision itself, wherein Sh. T. Jayaraman speaking for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to discharge such revenue liability for valid reasons. Mere contention that on account of frequent changes in the provision of law, which itself is devoid of substance, cannot be a justification to avoid the penal liability resulting from failure to discharge the revenue liability by the assessee. 20. The contention that the revenue had accepted the decisions of the Tribunal in identical cases and that, therefore, the Department has no reason to hold contra view in the appellant s case is totally devoid of substance. In fact, in the face of the decision of the Larger Bench in Modernova Plastyles Pvt. Ltd. case, the argument sought to be canvassed is to be rejected being totally devoid of substance. 21. Before we part with the matter, it is necessary to make reference to one of the decisions by us in the matter of M/s. Greenply Industries Ltd. v CCE, Jaipur in Excise Appeal No. 2620 of 2009 delivered on 15-3-2010 [2010 (259) E.L.T. 103 (T)]. The said decision was delivered on the basis of applicability of provisio to the said Rule. It came into force w.e.f. 13-11-2007. Unfortunately, the said fact and on that count it would not apply to the facts of that case, was not bro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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