Custom, Excise & Service Tax Tribunal
M/S. Fcc Rico Ltd vs Cce, Gurgaon on 3 February, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing:03.02.11
Date of decision:03.02.11
Excise Appeal No.E/1212 of 2009-SM(BR)
[Arising out of Order-in-Appeal No.43/ANS/GGN/2009 dated 12.02.2009 passed by the Commissioner of Central Excise (Appeals), Gurgaon)].
M/s. FCC Rico Ltd. Appellant
Vs.
CCE, Gurgaon Respondent
For approval and signature:
Honble Shri Rakesh Kumar, Member (Technical) ,,,
1. Whether Press Reporters may be allowed to see CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Appearance: Rep. by Shri Ram Chander Chaudhary, Advocate for the appellants.
Rep. by Shri R.K. Gupta, SDR for the respondent.
CORAM: Honble Shri Rakesh Kumar, Member (Technical) Order No/Dated:3.2.2011 Per Rakesh Kumar The appellant engaged in the manufacture of motor vehicle parts chargeable to central excise duty and availing the facility of Cenvat credit of duty paid on inputs and capital goods under Cenvat Credit Rules, 2004 had received some capital goods (D.G. Sets) on which they had taken capital goods Cenvat credit. Subsequently, after their use, for some years, the same were disposed of in March, 2007 at price of Rs.2,18,756/- and at the time sale of the capital goods, the appellant paid duty of Rs.36,051/- on the transaction value. The Department was of the view that in terms of the provisions of Rule 3(5) of the Cenvat Credit Rules at the time of disposal of used capital goods, the Appellants were required to pay an amount equal to the Cenvat credit originally taken in respect of the capital goods and on this basis, the department alleged short payment of duty amounting to Rs.45,886/-. It is on this basis that the Asstt. Commissioner vide order-in-original dated 31.10.2008 confirmed the demand of Rs.45,866/- along with interest under Section 11 AB and imposed equal penalty under Rule 15 (2) of the Cenvat Credit Rules, 2004 read with Section 11 AC of the Act. On appeal to the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 12.02.2009 upheld the Asstt. Commissioners order. It is against this order that the present appeal has been filed.
2. Heard both the sides.
3. Shri Ram Chander Chaudhary, ld. Counsel representing the appellant, pleaded that the issue involved in these case is no longer res intergra and has already been decided by the Division Bench of the Tribunal in the appellants favour in the case of Greenply Industries Ltd. Vs. CCE, Jaipur reported in 2010 (259) ELT 103 (Tribunal-Delhi) and in view of this, the impugned order is not correct.
4. Shri R.K. Gupta, SDR, ld. Departmental Representative defended the impugned order reiterating the findings of the Commissioner (Appeals) and emphasised that since during the period of dispute as per the provisions of Rule 3(5) of Cenvat Credit Rules, 2004, on removal of the inputs/capital goods as such, an amount equal to the Cenvat credit originally taken was required to be paid, the appellant at the time of sale of the capital goods even if used were required to pay an amount equal to the Cenvat credit originally taken and that while selling the D.G. Sets even after use, the same have been sold by the appellant as DG sets, not as scrap and the goods were still identifiable as capital goods and hence, at the time of removal of the goods.
5. I have carefully considered the submissions from both the sides and perused the records. Since the issue involved in this case is squarely covered by the decision of the Tribunal in the case of Greenply Industries Ltd. (supra), wherein it was held that at the time of removal of the used capital goods, duty only on the transaction value is required to be paid, the impugned order demanding an amount equal to the Cenvat credit originally taken is not correct and the same is set aside. The appeal is allowed.
(Rakesh Kumar) Member (Technical) Ckp.