TMI Blog2017 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat credit availed by the CESTAT since there was no physical removal of such goods. As the goods have been transferred to their sister unit, in that circumstance, it is a Revenue neutrality situation. In that circumstance also, the appellant is not required to reverse the Cenvat credit. Extended period of limitation - Held that: - As there were divergent views of various High Courts during the relevant period, in that circumstance, the show cause notice cannot be issued by invoking the extended period of limitation. Appeal allowed - decided in favor of appellant. - Appeal No.ST/11492/2017-SM - Final Order No.A/13585/2017 - Dated:- 22-11-2017 - Mr. Ashok Jindal, Member (Judicial) Shri Prasad Pranjape, Advocate for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip of the capital goods were transferred to their sister unit. Therefore, the provisions of Rule 3(5) of Cenvat Credit Rules, 2004 are not applicable to the facts of this case. He further submits that the issue has been examined by the Hon ble Allahabad High Court in the case of Hero Motors Limited Vs. CCE, Ghaziabad - 2014 (310) ELT 729 (All.) and in the case of CCE, Tiruchirappali Vs. CESTAT, Chennai - 2015 (323) ELT 290 (Mad). Further, in the case of Commissioner Vs. Ultra Tech Cement Limited - 2014 (310) ELT 554 (Tri. Bang.) and he also relied upon the decision of this Tribunal in the case of CCE, Raipur Vs. Bhilai Steel Plant - 2017-VIL-01-CESTAT-DELHI-CE to say that as the capital goods has not been removed physically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the submissions made by both sides, I find that the issue to be decided by me is, whether the appellant is required to reverse the Cenvat credit on transfer of capital goods to their sister unit, in terms of Rule 3(5) of Cenvat Credit Rules, 2004 or not The ld. Counsel for the appellant relied on various judicial pronouncements. Therefore, the issue is to be decided whether in terms of Rule 3(5) of Cenvat Credit Rules, 2004 the capital goods are required to be physically removed or mere transfer can be said that goods have been removed. The said issue has been examined by the Hon'ble Apex Court in the case of J.K. Spinning and Weaving Mills Limited Vs. UOI - 1987 (32) ELT 234 (SC) wherein the Hon'ble Apex Court observed as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules or in Central Excise Act, nowhere removal has been defined. Therefore, the verdict of Hon'ble Apex Court is binding on me. Moreover, the decision of Associated Cement Co. Limited (supra) was examined by this Tribunal in the case of Bhilai Steel Plant (supra) wherein this Tribunal observed as under:- Jam, Id. Advocate for the respondent. 10. Ld. A. R. submits that in terms of Rule 3(4) of the Cenvat Credit Rules, the payment of an am6untequiv`lent to the credit availed on capital goods is required to be made inasmuch as the power plant stands sold to M/s BESCL even though there is no physical removal of goods even after sale. He argued that the transaction was nothing short of physical removal of the capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne place to another. In other words, it contemplates physical movement of goods from one place to another. In the Tribunal decision in the case of L.G. Balakrishnan and Bros. Limited (supra) , the Tribunal has examined a similar question as is before us and considered the meaning of the word removal as explained by the Hon ble Supreme Court and held as under: 10. I n view of the above settled decision, we find that the provisions of Rule 3 (5) are not attracted in the present case. The original authority's attempt to distinguish the above findings is not appropriate. He found that these decisions are regarding change of ownership of whole factory whereas here only a part of the factory is transferred. We find such finding as unt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an approved purposes. 13. We also note that the Tribunal has taken similar view in all the cases cited by the respondent. The Tribunal decision cited in the case of Steel Authority of India Limited - 2007 (219) ELT 960 (Tri-Del.) - 2007-VIL-60-CESTAT-DEL-CE has dealt with identical facts pertaining to another unit of respondent at Rourkela. We also note that the respondent has cited similar decision from the Hon ble Allahabad High Court as well as Madras High Court. Further, I find that after the decision of Associated Cement Co. Limited, the Hon ble Karnataka High Court itself has examined the issue again in the case of Commissioner Vs. Ultra Tech Cement Limited - 2015 (321) ELT A150 (Kar.) and dismissed the appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
