TMI Blog2016 (9) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... apital goods are cleared without putting them to use. The issue stands decided by a Larger Bench decision in the case of Modernova Plastyles Pvt. Ltd. vs. Commissioner [2008 (10) TMI 51 - CESTAT, MUMBAI]. In view of the same, the impugned orders are set aside. - Decided in favour of appellant - Excise Appeal No. 2311 of 2010- (SM) - Order No. FO/53535 /2016-(SM) - Dated:- 8-9-2016 - Hon'ble Ms. Archana Wadhwa, Member (Judicial) Shri Rupender Singh, Advocate for the Appellants Shri S Nunthuk, AR for the Respondent ORDER Per Ms. Archana Wadhwa : After hearing both sides, duly represented by Shri Rupender Singh, learned Advocate appearing for the appellant and Shri S Nunthuk, learned AR appearing for the Revenue, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s decisions and stand interpreted by various Courts to the effect that the said provisions would apply when the capital goods are cleared without putting them to use. The Tribunal s decision in the case of Cummin India Ltd. vs. Commissioner [2007 (219) ELT 911 (Tri-Del)] stand upheld by the Tribunal decision of Hon ble Bombay High Court as reported in [ 2009 234 ELT A 120 (Bom)]. To the same effect is the Hon ble Madras High Court decision in the case of CCE, Coimbatore vs. Lakshmi Machines Works Ltd. [2015 (321) ELT 577 (Mad)] as also the Madras High Court decision in the case of M/s. Harsh International (Khaini) Pvt. Ltd. vs. CCE [2012 (281) ELT 714 (Del)]. 4. It is in these circumstances, Commissioner (Appeals) has referred to a Larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-LB). It stands observed by the Tribunal that the decision in the case of Larger Bench, being in the context of Rule 4(5)(a) of the Cenvat Credit Rules, 2004 is not directly applicable to the interpretation of Rule 3(5). The Tribunal observed that in as much as the issue stands decided in the case of Cummins Ltd. and stands confirmed by the Bombay High Court, the decision of the Bombay High Court is binding upon the Tribunal. 5. Infact, I find that the said Larger Bench decision was also placed before the Delhi High Court in the case of Harsh International (Khaini) Pvt. Ltd. (supra) as also in another case of the Tribunal in the case of Shree Rajasthan Syntax Ltd. vs. CCE, Jaipur [2012 (280) ELT 470 (Tri-Del)]. Inasmuch as the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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