TMI Blog2004 (2) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... of CETA 1985. They were availing Modvat credit on various capital goods received by them in their factory. During the period 8/2000 to 2/2001, it was noticed that they had removed capital goods on which Cenvat credit was availed, viz. Gunning Mass. Whytheat Graphite Electrodes by debiting only 50% of duty amounting to Rs. 1,44,1282/- in their Cenvat Credit Part II Register. In terms of Explanation to Clause (b) of the of sub-rule (10) of Rule 57AB when the capital goods are removed from the factory, the manufacturer of the final product shall pay the appropriate duty of excise leviable thereon as if such capital goods have been manufactured in the said factory and such removal shall be made under the cover of an invoice prescribed under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, the allegation that they have suppressed the facts or there was any intention to evade duty, is without any basis and he prayed for allowing the appeal. He has also relied upon the judgment of the Larger Bench in the case of CCE, Vadodara v. Asia Brown Boveri Ltd. reported in 2000 (120) E.L.T. 228 wherein the Tribunal has held that "Legal fiction of treating the inputs as having been manufactured by the recipients of the inputs was only to see that the manufacturer restores to the original position by debiting the same rate of duty at which he had taken the credit. 4. Shri C. Mani, learned JDR appearing on behalf of the Revenue defended the impugned order and submitted that in the present case certain of the capital goods ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer or for payment of duty on inputs or capital goods themselves, if such inputs are removed as such or after being partially processed or such capital goods are removed as such." The explanation to above rule reads as under : "When inputs or capital goods are removed from the factory, the manufacturer of the final products shall pay the appropriate duty of excise leviable thereon as if such inputs or capital goods have been manufactured in the said factory, and such removal shall be made under the cover of an invoice prescribed under Rule 52A." On a reading of sub-rule (1) reproduced above, it is clear that the credit taken may be utilized for payment of duty on inputs or capital goods themselves if they are removed as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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