TMI Blog2008 (11) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... as such - respondents were required to reverse the entire credit – penalty not to be imposed. - E/1480/2007-MUM - A/745/2008-WZB/C-V/SMB - Dated:- 21-11-2008 - Shri K.K. Agarwal, Member (T) Shri Manish Mohan, SDR, for the Appellant. Shri Bharat Raichandani, Advocate, for the Respondent. [Order].- This is an appeal filed by the revenue. The brief facts of the case are that the respondents M/s. Betts India Pvt. Ltd. are engaged in manufacture of plastic laminated tubes falling under Chapter 39 of the Schedule to Central Excise Tariff Act, 1985. On scrutiny of records, it was observed that the respondents had received capital goods in their factory premises on payment of duty of Rs. 39,57,765/- and had taken credit of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 2. Ld. SDR submitted that the words "removed as such" have been interpreted by the Larger Bench of the Tribunal in the case of Modernova Plastyles Pvt. Ltd. - 2008 (232) E.L.T. 29 (Tri.-LB) = 2008-TIOL-1771-CESTAT-MUM-LB wherein contradictory decisions in the case of Madura Coats Pvt. Ltd. and Built Industrial Packaging Co. Ltd. [2007 (216) E.L.T. 217 (Tribunal)] were considered and the Larger Bench held that the expression "as such" has to be interpreted as commonly understood, which is in the "original form" and "without any addition, alteration or modification". It does not have any connection with the goods (capital goods) being new/unused or used. The expression "as such" intended to cover both capital goods cleared wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to be reversed when used capital goods are cleared as such. It is his submission that in such a case, he is required to reverse the credit equivalent to the duty payable on the depreciated value of the capital goods. Since in his case duty has been paid on the depreciated value as per the provisions of Rule 57S(2), no further duty is payable by him. Once a High Court decision is available, a Larger Bench decision cannot prevail, as has been held by the Larger Bench of the Tribunal in the case of Mira Silk Mills, 2003 (153) E.L.T. 686 (Tri.-LB). Since the credit was taken at the time when Rule 57S(2) was there in the statute book, the same will be relevant for the purpose of determining the depreciated value. Relevant date for dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal's decision in the case of Spenta International Ltd. (cited supra) is not relevant as it related to the eligibility to credit at the time of receipt of the goods, whereas in the present case, the issue is regarding reversal of the credit at the time of clearance. Once no sale value is available as was the case in Cummins India Ltd., the question of applying the decision of the Tribunal, as upheld by the Bombay High Court, to the respondent's case does not arise. The law during the relevant time was very clear as under Rule 3(5) of the Cenvat Credit Rules, 2004, the respondents were required to pay an amount equivalent to the credit availed in respect of capital goods cleared as such. In view of this, the respondents were requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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