ORDER
Archana Wadhwa, Member (J)
1. The appellants are engaged in the manufacture of various articles of plastic such as chairs, stools, tables etc and were availing the benefit of Modvat credit in respect of inputs, in terms of Rule 57A. The had also taken the benefit of Modvat credit on various capital goods. In terms of the provisions of Rule 57Q.
2. The appellant’s factory met with a fire on 26.1.2001, in which various inputs and capital goods, on which the appellants had taken Modvat credit, were destroyed. However, some of the capital goods were subsequently salvaged by the appellants and were, either sold as such, or as waste and scrap on appropriate payment of duty leviable on the sale value of the goods.
3. After due investigation, proceedings were initiated against the appellants for recovery of Modvat credit in respect of the destroyed inputs and the capital goods. The Show Cause Notice issued to them for the said purpose culminated into the impugned order passed by the Commissioner, confirming the demand of duty of Rs. 44,59,552/- in respect of the destroyed inputs and of Rs. 33,39,917/- in respect of capital goods. In addition, personal penalty of Rs. 14.00 lakhs was also imposed. The said order of the Commissioner is now impugned before us.
4. We have heard the Ld Advocate Shri C S Lodha and Shri Bidhan Chandra, the Ld DR for the Revenue.
5. The Ld Advocate does not dispute that the credit availed by them, in respect of inputs, is required to be reversed back, inasmuch as the said inputs were not issued for use in the manufacture of final product at the time of the incident of fire. Accordingly, he submits that he is not contesting the said confirmation. However, in respect of Modvat credit on capital goods, he drew our attention to Rule 3 (4) of the Cenvat Credit Rules, 2002. In terms of the said rule, capital goods on which credit has been taken, are removed subsequently as such from the factory, the manufacturer of the final product is required to pay and amount equal to the duty of excise which is leviable on such goods at the rate applicable to such goods on the date of such removal and on the value determined for such goods under sub section (2) of Section 3 or Section 4 or Section 4A of the Central Excise Act, 1944, and as such removals are required to be made under the cover of an invoice referred to in rule (7) of the Cenvat Credit Rules, 2002. The Appellants’ contention is that they have complied with the condition of the said rules, inasmuch as at the time of clearance of the damaged capital goods, they have assessed the duty liability on the same and have paid the duty. There is no dispute about the above factual position. He also submits that the capital goods in question were in use in the appellants’ factory for the last three to four years and were destroyed on account of the unfortunate accident of fire. The department is not justified for denial of the Modvat Credit originally availed by the appellant at the time of installation of the capital goods.
6. We fully agree with the above contention of the Ld Advocate. As there is no dispute that Modvat credit was availed in accordance with the provisions of Modvat Rules., The provisions of Rule 3 (4) provided for clearance of the capital goods, after payment of duty leviable of the same at the rate and value determined as per the provisions of the Valuations in the Central Excise Act, Such duty has already been paid by the appellants. In this view of the matter, we are of the view that denial of credit, originally taken by the appellant, is not justified. We accordingly set aside the demand for duty of Rs. 33,39,917/- confirmed by denying the credit in respect of capital goods and penalty of Rs. 14.00 lakhs. The demand of duty of Rs. 44,59,552/- relatable to Modvat credit in respect of inputs destroyed in the fire is, however, confirmed, as not contested.
7. The appeal is disposed on in above terms.