TMI Blog2022 (6) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... t as the capital goods have not been physically removed from the premises where they were initially installed. The demand cannot sustain. The impugned order is set aside - Appeal allowed - decided in favor of appellant. - Service Tax Misc. Appl. (CT) No. 40129/2022 and Service Tax Appeal No.41117/2015 - Final Order No. 40248/2022 - Dated:- 13-6-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) and Shri P. Anjani Kumar, Member (Technical) Ms. Shwetha Vasudevan, Advocate for the Appellant Shri Vikas Jhajharia, AC (AR) for the Respondent ORDER Brief facts are that M/s. Vodafone Cellular Ltd. (herein after referred to as VCL) hold service tax registration for providing taxable services under various categories. They had availed CENVAT credit of excise duty, service tax paid on inputs and capital goods under CENVAT Credit Rules, 2004. Later, with a view to sharing of passive infrastructure among mobile operators and by way of a scheme of arrangement duly approved by the Hon ble High Court of Madras on 19.11.2019, VCL demerged its Passive Infrastructure Assets (herein after referred to as PIA) to a new and separate legal entity M/s. Vodafone Essar Infrastructure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removed outside the premises for the purpose of providing the output services. The learned counsel argued that it is an undisputed fact that the appellant continues to use the capital goods for rendering their output services which is evidenced by the scheme of arrangement for sharing infrastructure for the purpose of providing telecommunication services. 5. The learned counsel submitted that the issue is decided in the appellant s own case by the Chandigarh Bench of this Tribunal as reported in 2019 (5) TMI 1350 CESTAT Chandigarh. 6. The learned AR Shri Vikas Jhajharia supported the findings in the impugned order. 7. Heard both sides. 8. The issue is whether the appellants are liable to reverse the credit on the capital goods consequent to the formation of another company Vodafone Essar Infrastructure Ltd. by which there is transfer and merger of PIA of the appellant as per the scheme of arrangement. 9. As narrated from the facts above, there is no dispute that even after transfer, the capital goods are continued to be used by the appellant for providing output service. The Tribunal in the appellant s own case has analyzed the very same issue. The Tribunal relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or utilisation. Clause (b) of sub-section (4) of Section 4 has defined place of removal , but it has not defined removal . There can be no doubt that the word removal contemplates shifting of a thing from one place to another. In other words, it contemplates physical movement of goods from one place to another. As per the said decision of Hon'ble Apex Court, for the goods are required to be physically removed, in Cenvat Credit Rules or in Central Excise Act, nowhere removalhas 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 untequivlent 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 capital goods. He relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d inputs to the new legal entity, we find on perusal of sample invoice that these are not in voices in terms of Rule 11 of Central Excise Rules, 2002. The appellant contended that the goods were identified with value for the purpose of business transaction and not for sale transaction in terms of Sales Tax or Central Excise provision. We note that the invoices issued did not contain the details of any removal, mode of transport, rate of duty, duty payable thereon etc., as per the requirement of Rule 11 (2) of Central Excise Rules, 2002. We also note that based on these invoices no credit can be availed by any buyer as these are not in terms of Rule 9 of Cenvat Credit Rules, 2004. In view of settled legal position regarding need for physical removal of capital goods or inputs, in order to attract the provisions of Rule 3 (5) of Cenvat Credit Rules, 2004, we find that there is no justification to invoke such provision to demand and recover any amount from the appellant in this case. As such, we find no justification for the confirmation of demand towards capital goods. The same reasoning is applicable to the recovery of amount for the inputs amounting to Rs. 91,76,449/-. The demand t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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