TMI Blog2004 (6) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal is as to whether the appellant who had sold the power unit to M/s. Tata Electric Company by agreement dated 14-1-1999 on which they had taken Modvat credit is required to pay duty on the premise that such sale of power plant which are capital goods are deemed to have been removed after being used in terms of Rule 57S(1)(ii) of Central Excise Rules. 2. We have heard ld. Advocate Shri Naganand accompanied by Shri Sriranga, Advocate for appellants and Shri P.M. Saleem, ld. SDR. 3. Ld. Counsel submits that the issue is no longer res integra and the matter has been decided by the Tribunal in the case of Jamna Auto Industries Ltd. Anr. v. CCE, Indore [2001 (130) E.L.T. 181 (T) = 2000 (41) RLT 826] and that of Whirlpool of India Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain another letter was addressed in March, 1999 bringing to the notice of the Department about the sale of the power unit. Therefore, all the facts had been disclosed to the Department. The question of invoking larger period in terms of Sec. 11A does not arise. He also submitted that a show cause notice was initially issued on 12-5-2000 which was withdrawn and again a show cause notice was issued on 20-7-2000 which also does not refer to the aspect pertaining to amendment of the ground plan to exclude the power unit. He submits that there is no provision in Central Excise Rules to deny modvat claim and reversal of the same on sale of a unit. 4. Ld. SDR submitted that if the power plant was outside the factory unit then it is deemed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf cannot be considered as removal of goods from the factory for demanding duty. This was the very question, which was gone into by the Tribunal in the case of Jamna Auto Industries Ltd. and Another (supra) and in the case of Whirlpool of India Ltd. (supra). On perusal of all these orders, we are of the considered opinion that the facts are not distinguishable. In the case of Jamna Auto Industries Ltd., the Tribunal considered the aspect pertaining to sale of stabilizer/division as such to a Joint Venture Company after the sale, the de-registration of leaf spring division and stabiliser bar division was done. The ground plan was revised and registration was done in the name of Jamna NHK for stabiliser bar division and for leaf spring divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g duty on such transfer of the property is not valid and demands cannot be sustained. The findings recorded in Para 10 is reproduced herein below :- "10. We have heard the rival submissions. On careful consideration of the submissions made, case law cited and the evidence on record, we note that the issue is whether change in transfer is removal. The contention of the Department is that its removal under the Modvat scheme and is covered by Rule 57F(2). As against this the contention of the appellant is that removal is covered by Rules 9 49 and that under no circumstance, there has been a removal in the instant case in terms of Rules 9 49. It was also contended for the appellants that sub-rule (20) and sub-rule (21) become redundant. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the description of 'capital goods'. The Tribunal applied the ratio rendered in the case of Jamna Auto Industries Ltd. and allowed the assessee's appeal. We are of the considered opinion that even in this case, the capital goods were not physically removed from the factory. Mere amendment in the approved plan cannot be considered as removal of capital goods from the factory, therefore, both the judgments are not distinguishable and are required to be applied to the facts of the case. The citation referred by SDR is clearly distinguishable and not applicable to the facts of this case. Respectfully following the ratio of the above cited judgments, the impugned order is set aside and appeal is allowed with consequential relief, if any. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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