TMI Blog2013 (9) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... that there had been dispute on the interpretation of the expression “as such” - MODERNOVA PLASTYLES PVT. LTD. Versus COMMISSIONER OF C. EX., RAIGAD [2008 (10) TMI 51 - CESTAT, MUMBAI] - expression “as such” not having any connection with capital goods being new, unused or used and covered both capital goods cleared without being put to use and after use. - Decided in favor of assessee. - E/1111-1113 and 1463/2009 - A/433-436/2011-WZB/C-IV(SMB)/MUM - Dated:- 17-8-2011 - Shri S.K. Gaule, J. Shri Vinay Ansurkar, Advocate, for the Appellant. Shri Navneet, SDR, for the Respondent. ORDER Heard both sides. 2. The appellants have filed these appeals against Order-in-Appeal No. SB (49 to 51) 49 to 51/M-V/2009 dated 23-7-2009 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the appellants, proceedings were initiated against the appellants under sub-rule (1C) of Rule 57AB of the Central Excise Rules, 1944 for the period up to 30-6-2001 and Rule 3(4) of erstwhile Cenvat Credit Rules, 2001 for the period from 1-7-2001 to 28-2-2002 and thereafter Rule 3(4) of erstwhile Cenvat Credit Rules, 2002 for the period from 1-3-2002 to 28-2-2003 and under Rule 3(4) of erstwhile Cenvat Credit Rules, 2002 for the period from 1-3-2003 to 9-9-2004 and thereafter Rule 3(5) of Cenvat Credit Rules, 2004 for the period from 10-9-2004 and for the period From Dec., 2006 to Nov., 2007 and January, 2006 to Nov. 2006 both under Rule 3(5) of Cenvat Credit Rules, 2004 for not paying the duty on goods removed as such along with variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit originally availed by them at the time of receipt of capital goods, when the capital goods were subsequently removed as old, damaged and unserviceable capital goods. The contention is that the same was maintained by the Hon ble High Court of Bombay in the case of Commissioner v. Cummins India Ltd. reported in 2009 (234) E.L.T. A120 (Bom.). In support of their contention, they also placed reliance on Hon ble High Court of Punjab Haryana in the case of Commissioner of Central Excise, Chandigarh v. Raghav Alloys Ltd. - 2011 (268) E.L.T. 161 (P H). They also placed reliance on the Tribunal s decision in their own case vide Final Order No. A/511/2010/SMB/C-IV, dated 29-9-2010. 5. Learned Advocate appearing for the appellant also made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were covered by the expression as such occurring in Rule 3(4)(c) and Rule 4(5)(a) ibid. As regards SMC decision in the appellant s own case, learned SDR contended that the decision has been passed relying upon the decision in the case of Cummins India Ltd. (supra), which was discussed by the Larger Bench and that the conclusion arrived at by the Single Member which was applicable to Rule 3(4)(c) and not Rule 4(5)(a) of Cenvat Credit Rules, 2004. Thus, the Larger Bench has decided the issue by placing reliance on Rule 3(4) of Cenvat Credit Rules, 2004 and their finding that as used or not used is cleared as such. Therefore, the decision is not applicable to their case. In so far as challenging the order of Single Member, the contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Credit Rules, 2001, 2002 and 2004 respectively. The relevant rules at different period of time are read as under :- Rule 57AB of Cenvat Credit Rules, 1944 (1C) When inputs or capital goods, on which credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay an amount equal 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 under section 4 of the said Central Excise Act, and such removal shall be made under the cover of an invoice referred to in rule 52A. Rule 3(4)(c) of Cenvat Credit Rules, 2004 When inputs or capital goods, on which CENVAT credit has been taken, are rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows that the expression as such used in the Rules has to be interpreted as commonly understood which is in the original form and without any addition, alteration and modification . A similar issue was before the Larger Bench in the case of Modernova Plastyles (supra), wherein it was held that expression as such not having any connection with capital goods being new, unused or used and covers both capital goods cleared without being put to use and after use. Therefore, I find that the demands confirmed against the appellants are sustainable. The Tribunal s decision cited by the learned Counsel in the case of Cummins India (supra) has been distinguished by the Larger Bench in the case of Modernova Plastyles (supra). I agree with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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