TMI Blog2019 (3) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 13-3-2019 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri G. Natarajan, Advocate For the Appellant Shri A. Cletus, ADC (AR) For the Respondent ORDER Per Madhu Mohan Damodhar The facts of the case are that appellants were engaged in manufacture of cotton yarn. They had availed cenvat credit on inputs as well as capital goods and cleared their goods on payment of duty. From 1.8.2006, they started availing exemption from payment of duty on final products in terms of Notification NO.30/2004 dt. 9.7.2004. Pursuant to audit, it emerged that appellants had removed cenvat availed capital goods as such to their other units from June 2006 to December 2007, under i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e excise net and for the clearances of cenvat credit availed capital goods, after coming out of excise net they are not at all required to pay any amount. iv) The provisions of Rule 3 (5) of the CCR 2004 are applicable ony so longer a person is governed by the provisions of CCR 2004. Once the credit availed on capital goods is utilized and the balance credit has also lapsed and the person has opted to avail exemption thereafter and in the absence of any requirement for reversal of credit availed on capital goods in such scenario, the subject demands are without the authority of law. v) Without prejudice to the above, demand of the entire credit availed by the appellant is not proper and the reversal has to be quantified after allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards credit taken on the capital goods removed, upto 12.11.2007, namely, before introduction of Rule 11 (3) of the Rules. Hence harmonious reading of provisions of Rule 3 (5) and 4 (5) (a) of CCR 2004 will only bring forth that when cenvat availed capital goods are removed without use or removed, the manufacturer of the final product shall pay an amount equal to cenvat credit availed on such capital goods. Appellant s stand that they have gone out of the cenvat scheme and there is no need for them to pay amount under Rule 3 (5) of the CCR is not correct as they are required to comply with requirement of both the Rule 11 (3) and Rule 3 (5). Therefore amount equal to the credit originally availed is to be paid for removal of capital goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter dt. 07.05.2007 was received by the Range Office only on 20.02.2008. In a statement dt. 11.08.2008, Shri A. Mariappan, Director (Marketing Finance) of the appellant had explained that the letter was originally drafted for delivery in person, but they were told that the said letter was not required as they had already come out of the Central Excise control w.e.f. 1.8.2006. However later, they felt that intimation was necessary since they had not surrendered their Central Excise registration certificate and hence despatched the letter by post on 19.02.2008. Nonetheless, it is not clear from the narration or the statement as to on whose authority s advice did the appellant hold back despatch of the letter dt. 07.05.2007. Even the said le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the normal period and without invocation of extended period of demand and proposal for penalty under Section 11AC etc. of the Central Excise Act, 1944 as per the law laid down by the Hon ble Apex court in judgment, for example, Nizam Sugar Factory Vs CCE - 2006 (197) ELT 465 (SC), ECE Industries Vs CCE- 2004 (164) ELT 236 (SC) and CCE VS Chemphar Drugs Liniments 1989 (40) ELT 276 (SC). 6. Viewed in this light, the present SCN issued only on 25.08.2009 for the period June 2006 to December 2007 only is surely hit by limitation. The impugned order will get then vitiated on this aspect alone. This being so, without going into the merits of the matter, we set aside the impugned order and allow the appeal on the grounds of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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