TMI Blog2018 (12) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... period prior to the amendment of Rule 3 by the insertion of sub-rules (5B) and (5C). The applicability of Rule 3(5B) is prospective. Consequently, there can be no demand of reversal of Credit on the opening balance (Rs.1,17,61,774/- as on 01.04.2007). The Show Cause Notice incorporates the reply filed by the assessee, taking note of the Additional provisions made for the period 2008-09 and 2009-10 up to August 2009 which are invariably hit by the provisions of Rule 3(5B) and therefore, the Credit availed, if any, is required to be reversed - matter remanded to the file of the adjudicating authority to verify and demand appropriate reversals. Appeal allowed in part and part matter on remand. - Appeal No.: E/00322/2012 - Final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 06/2011 (ADC) dated 22.02.2011, the proposals in the above Show Cause Notice came to be confirmed. The first appellate authority having concurred with the findings as well as demand raised by the adjudicating authority vide impugned Order, the appellant has assailed the same in this appeal. 3. Today when the matter came up for hearing, Ld. Consultant Shri. Vinayaka appeared on behalf of the assesse and Ld. AC (AR) Shri. L. Nandakumar appeared on behalf of the Revenue. 4. I have considered the rival contentions, perused the materials placed on record and have also gone through the judgements relied on during the course of arguments. 5.1 I find from the records that the appellant has replied to the Show Cause Notice contending tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to write-off, then the manufacturer shall pay an amount equivalent to the CENVAT Credit availed in respect of such inputs or capital goods. He further submitted that when a provision to write-off is made in the Books of Account without actually removing the same, the date of notification becomes irrelevant to the reversal of Credit and thus submitted that the findings of the lower authorities are to be sustained. 7.1 The dispute relates to the period from 2007-08 to 2008-09. I find that the Hon ble High Court of Bombay in the case of Commissioner of Central Excise Vs. M/s. Hindalco Industries Ltd. 2011 (272) E.L.T. 161 (Mum.) has considered a somewhat similar issue and has arrived at the following conclusion : 5. The per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions from both the sides. I find that neither in the Order-in-Original nor in the impugned Order-in-Appeal, there is any finding that the inputs, in question, have been scraped and discarded from the inventory. On the contrary that the Appellant submits at the time of personal hearing before the adjudicating authority and before the Commissioner (Appeals) detailed chart showing the consumption of the inputs including the slow moving inputs had been submitted in support of their claim that the slow moving inputs, in respect of which Cenvat credit is sought to be denied, are being used. The inputs in respect of which the credit is sought to be denied are still being used and are very much in the stock. Just because a provision was made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On a very careful consideration of the issue, we find that the inputs/spares in this case had not at all been removed from the factory. Our attention was also invited to two decisions. Wherein the same issue was examined by this Tribunal and decision was given in favour of the party in the case of Bharat Heavy Electricals Ltd. v. Commissioner of Central Excise, Bangalore - 2002 (50) RLT 208 (Tri.-Bang.) and in the case of M/s. Hindustan Zinc Ltd. v. Commissioner of Central Excise, Visakhapatnam - 2005 (191) E.L.T. 724 (Tri.-Bang.) wherein it has been held that the Modvat Credit need not be reversed even though 75% of the value is written off. In the present case the spares/inputs are still available in the factory. There is no fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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