N.KUMAR ,J. - (1.) THIS appeal is by the revenue challenging the order passed by the Tribunal, which has upheld the order passed by the Commissioner of Central Excise, who in turn has set aside the order passed by the Assistant Commissioner demanding a sum of Rs. 2,15,258/ - under Section 11(A) of the Central Excise Act, 1944 as well as interest and penalty. The question before the Assessing Officer was whether the assessee is liable to pay an amount equal to the credit availed in respect of capital goods removed 'as such' during the period March 2007 and April 2007 as required under Rule 3(5) of CENVAT Credit Rules, 2004. The Assessing Officer held that the assessee has removed the subject capital goods 'as such' and has paid the duty only on the transaction value instead of paying an amount equal to the credit availed as required under the Rule. Therefore, the differential duty needs to be demanded along with interest and penalty. The said finding of the Assistant Commissioner was set aside by the Commissioner of Central Excise (Appeals) relying on four judgments of the Tribunal wherein it has held that the phrase 'as such' means capital goods not used and therefore, the payment of duty on the transaction value of the used capital goods is sufficient. Aggrieved by the said order, revenue has preferred an appeal to the Tribunal, wherein the Tribunal upheld the said order.
(2.) THEREFORE , the question that arises for consideration in this appeal is whether the payment of duty on the basis of transaction value is not correct and the assessee was justified in availing CENVAT credit. Therefore, it falls within the phrase 'determination of the rate of duty' as contained in Section 35(G) and (L) of the Act. As the determination of the said question is excluded under Section 35(G) of the Act, the revenue has to prefer an appeal to the Apex Court under Section 35(L). In that view of the matter, we declined to entertain this appeal. The appeal is rejected reserving liberty to the revenue to challenge the impugned orders before the Apex Court under Section 35(L) of the Act.;