HIS AUTOMOTIVES LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) By this appeal, the appellants are challenging the Order -in -Appeal No. 142/2002 (M -II) dated 21 -10 -2002 by which the Cenvat credit on capital goods namely Checking Fixtures and Jigs and Fixtures have been denied solely on the ground that the ownership of the said items does not lie in the hands of the appellants but it was owned by M/s. Hyundai Motors India Ltd. It is a fact which is noted by the authorities that M/s. Hyundai Motors had reversed the credit and the assessee had received the same under an invoice.

(2.) The appellants' contention is that the ownership is not the criteria for taking the credit and on this very issue on the very item, they relied on the judgment rendered in the case of Sharda Motors Industries Ltd. v. CCE, Chennai -II reported in 2002 (150) E.L.T. 759 (Tri. - Del.) = 2002 (51) RLT 33 (CEGAT - Del.) While granting stay and waiver of pre -deposit by Stay Order No. 161/2003, dated 20 -6 -2003, the DR was called upon to get a report from the Commissioner on the Board's circular No. 263/8/89, dated 1 -3 -89 on the very issue of grant of Modvat credit on capital goods even in circumstances where the ownership does not lie in the hands of assessee and on the citation referred to by the assessee. The Joint Commissioner has sent a report wherein he has noted that the department is proceeding to file an RCP against the judgment rendered in the case of Sharda Motors Industries Ltd. v. CCE, Chennai -II (supra). It is also stated in the reply that this judgment needs to be declared 'per incuriam'. It is stated that the Board's circular is not applicable. However, no explanation has been given as to how it is not applicable and how the judgment of Sharda Motors Inds. Ltd.'s case (supra) is a 'per incuriam'.

(3.) Ld. DR seeks for reference of the matter to Larger Bench so that the issue can be re -agitated.