TMI Blog2017 (3) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 / 2017 - Dated:- 20-2-2017 - Shri S. S. Garg, Judicial Member Mr. .M.S. Nagaraja, Adv For the Appellant Mr. Pakshi Rajan, A.R. For the Respondent ORDER Per S. S. Garg The present appeal is directed against the impugned order dated 29.07. 2008 passed by Commissioner (Appeals) wherein the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the order-in-original. Briefly the facts of the case are that the appellant is engaged in the manufacture of plastic chairs and articles thereof falling under Chapter 9403 70 00 and 3923 10 10 of the 1st Schedule to the CETA 1985. The appellant procured four capital goods vide invoice/bills of entry No. 064/25.10.2016, 362322/19.11.2001, 754019/07.02.2003 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 bonafide belief that the removal of capital goods as such does not attract duty. He further submitted that the Tribunal in the case of Cummins India Limited Vs. CCE, Pune 2007 (219) E.L.T. 911 (Tri.-Mum.) which has held that the interpretation given by the authorities below would lead to absurd results if an assessee is required to reverse the credit originally availed by them at the time of receipt of the capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts cited at bar by both the parties. The only question which needs to be decided in this case is whether the appellant is liable to reverse cenvat credit on capital goods when the capital goods are removed after being used for a period of about one year also. It is pertinent to note that till the law was amended as on 13.11.2007 in respect of used capital goods, there was no liability to pay duty. In fact this is evident from the fact that in the Cenvat Credit Rules 2004, the proviso was added making the position clear which was not cleared in the earlier provision. The proviso reads thus: If the capital goods, on which cenvat credit has been taken are removed after being used, the manufacturer or provider of output service shall pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 911 (Tri.-Mumbai) confirmed the order of the Appellate Tribunal which has held as under : The plain and simple meaning of expression as such would be that capital goods are removed without putting them to use. Admittedly, in the present case capital goods have been used for a period of more than 7 to 8 years. As such, interpretation given by the authorities below would lead to absurd results if an assessee is required to reverse the credit originally availed by them at the time of receipt of the capital goods, when the said capital goods are subsequently removed as old, damaged and unserviceable capital goods. This would defeat the very purpose of grant of facility of Modvat credit in respect of capital goods and would not be in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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