TMI Blog2024 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... r the payment of Central Excise duty on such tools and moulds that these are physically available in the appellant s manufacturing premises. Reliance can be placed in the case of M/S. L.G. BALAKRISHNAN AND BROS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, TRICHY [ 2016 (6) TMI 829 - CESTAT CHENNAI] where it was held that 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. Timpugned order-in-original is without any merit and the same is set aside - appeal allowed. - HON BLE MR. RAMESH NAIR, MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR , MEMBER ( TECHNICAL ) Shri Amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith M/s. Ford India Pvt. Limited the appellant have placed purchase order for such tools and moulds from various vendors during the relevant time and had taken Cenvat credit to the tune of Rs. 2,14,03,051/- on procurement of such tools and moulds on the strength of purchase invoices. The learned advocate has further submitted that after receiving the tools and moulds into their factory, the appellant had raised commercial invoice to them for sale of such tools and moulds to M/s. Ford India Pvt. Limited. The said commercial invoices were only to effect the sale of such tools to their customers namely M/s. Ford India Pvt. Limited. It was further explained by learned advocate that such tools and moulds were supposed to be provided to M/s. Ford India Pvt. Limited for manufacture of various automobile components. However, since it was requested by M/s. Ford India Pvt. Limited that appellant can procure the same from various vendors and use the same for manufacture of automobile components and the ownership of such tools and moulds is to be transferred to M/s. Ford India Pvt. Limited. 3. The learned advocate further emphasized that tools and moulds on which they have availed Cenvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record on VAT-able invoice issued to M/s. Ford India Pvt. Limited and whether the Cenvat credit availed by them is hit by the provisions of Rule 3(5A)(a) of the Cenvat Credit Rules, 2004. 6. The facts of the matter are that though the tools and moulds purchased by the appellant have been sold by them on record on VAT-able invoices however, it is mater of record that such tools and moulds are still being used by the appellant for manufacture of automobile components which were being supplied by them to M/s. Ford India Pvt. Limited. It will be relevant to have a glance at the relevant provisions of Rule 3(5A)(a) of Cenvat Credit Rules, 2004:- (a) if the capital goods, on which Cenvat credit has been taken, are removed after being used, the manufacturer or provider of output services shall pay an amount equal to the CENVAT credit taken on the said capital goods reduced by the percentage points calculated by straight line method as specified below for each quarter of a year or part thereof from the date of taking the CENVAT credit, namely:- (i) for computers and computer peripherals: For each quarter in the first year@ 10% For each quarter in the second year@ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 towards such recovery is also not sustainable. There is no allegation or finding regarding any irregular credit availed on inputs or capital goods or usage of these goods for other than approved purposes. (b) Polyplastics Industries (I) Pvt. Limited vs. Commissioner of Central Excise Service Tax, Panchkula -2016 (332) ELT 895 (Tri. - Del.) 5. I find from the available records that upon verification of the documents and after visiting the factory of the appellant, the Chartered Engineer has certified that the moulds in question are in possession of the appellant and that the said moulds are running in g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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