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TMI Blog2015 (10) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... mation of the demand for the entire CENVAT credit availed by the appellants on the machine. This Tribunal when the appeal was considered against the earlier order had remanded the matter with a direction to consider the claim of the appellants that the entire demand was time barred and therefore no penalty was imposable and no duty could have been demanded. As regards the merits of the demand for CENVAT credit, this Tribunal had taken the view that the appellants may not have a case. Since the Final Order of the Tribunal No.658/2011 dt. 07/10/2011 has not been challenged, the only issue to be considered is whether appellants have a case on limitation. 2. The learned counsel relies upon the decision in the case of Harsh International (Khain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original adjudicating authority. I find that the original adjudicating authority had considered several decisions of the Tribunal and had rightly come to the conclusion that during the relevant period thee were decisions taking a view that the assessee need not have to pay on capital goods cleared after use. Therefore extended period could not have been invoked. The decision in the case of Madura Coats Pvt. Ltd. Vs. CCE, Tirunelveli [2005(190) ELT 450 (Tri. Bang.)] relied upon by the learned original adjudicating authority is appropriate and would show that the appellant could have entertained a bona fide belief. More over as submitted by the learned counsel, there were no provision in the rules in respect of clearance of capital goods afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een actively involved in the evasion of Government duty (as mentioned in the OIA) is not based on the facts or law. I find that the reliance of the learned counsel on the decision in the case of Harsh International (Khaini) Pvt. Ltd. is relevant and paragraphs 11 to 16 are reproduced for better appreciation. 11. In the case of Harsh International Pvt. Ltd., the first question is whether it is liable for the duty of ` 58,88,038/- under Section 11A of the Act. According to Rule 3(5), as it stood amended with effect from 6-5-2005, the following was the position :- 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-11-2007. However, we note that the view taken by the Tribunal in the impugned order is that the words 'as such' appearing in Rule 3(5) also took in the used capital goods. Thus according to the Tribunal, used capital goods when removed continued to remain capital goods 'as such' and therefore the Cenvat credit availed of on the capital goods has to be repaid. Thus the substantial question of law raised in the appeal is whether used capital goods on which Cenvat credit was availed are capital goods removed as such'. The words 'as such' have been interpreted by the Punjab & Haryana High Court in Commissioner of C. Ex., Chandigarh v. Raghav Alloys Ltd., 2011 (268) E.L.T. 161 (P & H) = 2012 (26) S.T.R. 87 (P & H) to refer to 'unused' capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter being put into use, the value shall be determined after allowing the benefit to depreciation as per rates fixed in Boards Letter dated 26-5-1993. The Respondent has utilized the machinery for nine years and paid duty on transaction value. 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 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 v. CCE, Pune-III, 2007 (219) E.L.T. 911 (Tri.-Mumbai). The Tribunal in the case of Nahar Fibres has also dismissed Appeal of the Revenue and there is nothing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act or any interest on the duty. Thus the appellant is not liable to the payment of duty, interest or penalty. The substantial question of law is answered in the negative, in favour of the appellant and against the Central Excise Department. The observations of the Honble High Court are applicable to the facts of this case and no contrary decision on the specific issue involved in this case of Supreme Court has been produced before me. Moreover it is also seen that Hon'ble High Court of Punjab & Haryana in the case of Commissioner Vs. Raghav Alloys Ltd. [2011(268) ELT 161 (P&H)] had also taken the same view. Of course there was a minor difference. In that case, Hon'ble High Court had accepted that duty paid on transaction value by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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