TMI Blog2016 (8) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... NATAKA HIGH COURT], prior to amendment effected on 13.11.2007, the assessee is liable to pay duty on removal of used capital goods. Therefore, the impugned order do not sustain and is set aside. Invokation of extended period of limitation - Held that:- the ratios of the judgments states that when there are conflicting decisions of the Tribunal and also of the High Courts on a particular issue, the extended period is not invocable. Therefore following the ratio in the above cited judgments, I hold that the show-cause notice in this particular case is beyond limitation and the demand is time-barred. - Decided in favour of appellant - E/2115/2010-SM - Final Order No.20638/2016 - Dated:- 17-8-2016 - Shri S. S. Garg, Judicial Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand and thereafter the appeal was filed against the said order before the Commissioner (Appeals) and the Commissioner (Appeals) vide Order-in-Appeal dated 26.08.2010 rejected the appeal filed by the appellant and upheld the Order-in-Original and aggrieved by the said order, the appellant is before the Tribunal. 2. The learned counsel for the appellant submitted that the impugned order is contrary to law and the precedents decided by various High Courts which have been ignored by the learned Commissioner while passing the impugned order. He further submitted that during the relevant period there was no provision to pay duty at the time of removal of used capital goods under Cenvat Credit Rules 2004 and the appellant was of the bonafid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice was issued on 12.05.2009 whereas the used capital goods was cleared on 10.04.2007 by invoking the larger period of limitation. In support of the argument on limitation, he relied upon the following judgments: a) Jaiprakash Industries Ltd. Vs. CCE, Chandigarh 2002 (146) ELT 481 (SC) b) Continental Foundation Jt. Venture Vs. CCE, Chandigarh 2007 (216) ELT 177 (SC) 3. On the other hand the learned AR reiterated the findings in the impugned order and relied upon the following judgments wherein it has been held that assessee is liable to pay duty when the used capital goods is removed as such. a) Modernova Plastyles Pvt. Ltd. Vs. CCE, Raigad - 2008-TIOL-1771-CESTAT-MUM-LB b) Harsh International Pvt. Ltd. Vs. CCE, Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvat either in full or depreciated amount of cenvat during the relevant period. The word as such used in the Cenvat Credit Rules has been the subject matter of interpretation by the various High Courts. 11. ... Punjab and Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. Khalsa Cotspin (P) Ltd., reported in 2011 (270) E.L.T. 349 (P H) has held as under : The assessee having validly availed cenvat credit, same is required to be reversed only if goods were cleared in the same position without payment of excise duty. In the present case, it has been held by the Tribunal that goods were not cleared in the same position but after having been used and in such situation Rule 3(5) of the Rules will not apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They were sold as used capital goods. 4.1. Similarly the Hon ble High Court of Karnataka in the case of CCE, Bangalore II Vs. Solectron Centum Electronics Ltd. 2014 (309) ELT 479 (Kar.), after considering the provisions of cenvat credit before its amendment and after the amendment on 13.11.2007 and after considering the judgments of Punjab Haryana High Court, Bombay High Court, Delhi High Court as cited supra has held that till the amendment of Rule 3(4) of Cenvat Credit Rules 2004 as on 13.11.2007, in respect of used capital goods, there was no liability to pay duty and it was only with the addition of the proviso thereto that the situation changed. The learned AR has relied upon the judgments cited supra which has taken a contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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