TMI Blog2015 (3) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... is otherwise in order. - Following decision of Sterlite Industries Ltd. Raigarh [2011 (3) TMI 1556 - BOMBAY HIGH COURT] - Decided in favour of assessee. - F.No. 195/194/12-RA - 159/14-Cx - Dated:- 22-4-2014 - Shri D.P. Singh, Joint Secretary ORDER This revision application is filed by M/s Miraj Power Services Rolliwala Compound, 120 Bamroli-Pandesara Road, Surat against the order-in-appeal No.BC/317/RGD/11-12 dated 16.2.12 passed by the Commissioner of Central Excise (Appeals-III)_Mumbai-III, Navi Mumbai with respect to order-in original No.994/10-11/AC(Rebate) Raigad dated 9.12.11 passed by Assistant Commissioner of Central Excise (Rebate), Raigad. 2. Brief facts of the case are that: 2.1 M/s. Miraaj Power Services having office situated at Rotiwala Compound, Opp., Bharat Petrol Pump, Near Manahar Dyeing Mills, 120 Bamroli-Pandesara Road, Surat (Gujrat) have filed the below -mentioned 4 rebate claims for rebate of duty against the export of capital goods procured from different manufacturers/ suppliers. 2.2 The details of the Rebate Claims filed by the claimant:- Sr. No. RC-No. RC-Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 3(5) equivalent to the amount of duty credit originally availed in terms of Rule 3(4) of Central Credit Rules 2002 does not fall within the meaning of duty as per notification No.19/04-CE(NT) dated 6.9.04. 3. Being aggrieved by the said order-in-original, the applicant filed appeal before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the various grounds: 4.1 There is no dispute that the manufacturer had removal the Excisable Goods (capital goods) from his factory under an invoice issued under rule 11 of Central Excise Rules, 2002. Under the provision of rule 8(1) of Central Excise Rules, 2002, the duty on the goods removal from the factory during the month shall be paid by the 5th day of the following month. By explanation (a) of the rule, the duty liability shall be deemed to have been discharged only if the amount payable is credited to the account of the Central Government by the specific date. As soon as, the manufacturer debits the amount of duty payable, in the CENVAT Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs authorities Rule 18.of Central Excise Rules, 2002 Rules 3(5) and 3(6) of Cenvat Credit Rules 2004. [paras 17, 18] The ratio of this judgement is applicable to our case, hence appeal should be allowed, hence see has to maintain judicial discipline but fails to do so. 5. Applicant vide letter dated 3.4.14 has made following submissions: 5.1 That the applicant is merchant exporter and exported the goods in question which were old and use D.G. Set its Accessories purchased from different manufacturer where it was installed and used for generation of electricity used for their manufacturing purpose. The said D.G. sets were exported on payment of excise duty by way of payment made in terms of Rule 3(5) of Cenvat Credit Rules 2004. 5.2 The Applicant rely upon the following decisions under which the Joint Secretary has held that an amount equal to Cenvat credit taken on inputs or capital goods debited on removal of inputs and capital goods as such in terms of Rule 3(4)(b) 3(5) of Cenvat Credit Rules, 2004 is to be treated as Payment of duty of excise for the purpose of Rule 18 of the Central Excise Rules, 2002 read with the notification issued thereunder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit Rules 2004 on removal of inputs / capital goods as such payment of duty of excise for the purpose of sanctioning rebate claim under rule 18 of Central Excise Rules 2002 read with Not. No. 19/04-CE(NT) dated 6.9.2004. These GOI revision orders were challenged by department before Bombay High Court in the following writ petitions: Sr. No. Case of W.P. No. filed by department Against GOI Order No. Date of Judgment 1 M/s Ispat Industries 88/11 326/10-Cx dt 18/02/10 24.03.2011 2 M/s Micro Ink Ltd. 2195/10 873/10-Cx dt. 26/05/10 23.03.2011 3 M/s Sterlite Industries India Ltd. 2094/10 18/09 dt. 20/01/09 24.03.2011 9. Hon'ble High Court of Bombay has dismissed all these writ petitions and upheld GOI Revision orders. Hon'ble High Court in its: judgement dated 24.3.11 in the case of Sterlite Industries India Ltd. in para 4 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital goods imported by the assessee were put to use before they were exported. Assuming that the said capital goods were used by the asses before export, it would still be export of the capital goods imported by the assessee. In other words the duty paid capital goods when exported as capital goods even after put to use for some time, Rule 3(5) of 2004 Rules would be applicable, because in such a case the capital goods even after put to use for some time continue to be capital goods. 8. The expression removed as such in rule 3(5) of the Cenvat Credit Rules, 2004 simply means that when inputs or capital goods are removed as inputs or capital goods as such, the assessee shall pay an amount equal to the credit availed in respect of such inputs or capital goods In other words, inputs/capital goods on the date of removal must be in the same form as they were on the date on which they were brought into the factory. Normal wear and tear of the inputs/capital goods does not make them different from the original inputs/capital goods Moreover, it is not the case of the revenue that on account of the user, the character of the capital goods has changed Therefore, where duty paid in ..... 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