TMI Blog2017 (6) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal allowed - decided in favor of appellant. - E/853 & 854/2005 - 40996-40997/2017 - Dated:- 16-6-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri V. Padmanabhan, Member (Technical) Shri T. Chandran Nair, Advocate for the Appellant Shri K.P. Muralidharan, AC (AR) for the Respondent ORDER Per Bench The issue involved in both the appeals being the same, they were heard together and are disposed by this common order. 2. The appellants cleared the capital goods Moulds to their sister units on returnable basis, during the disputed period and demand has been raised alleging that they are liable to reverse the credit availed /duty paid for removal of the capital goods. 3. The brief facts of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed in the show cause notice cannot be sustained and that the duty has to be arrived on the basis of the invoice value applying depreciation. Thus, the duty amount was arrived by the original authority based on CBEC circular adopting depreciation in the written down value method. In appeal, Commissioner (Appeals) held that the proposal in the show cause notices demanding duty by adopting 115% of the cost of production is ab initio unsustainable and that by applying the written down method, the original authority has travelled beyond the scope of the show cause notice and for this reason, the impugned order does not sustain. Be that as it may, the appellate authority directed to issue show cause notice to the appellant as to which meth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 30.6.2005 4. On behalf of the appellant, learned counsel T. Chandran Nair argued that the appellant was under bonafide belief that the duty was not payable or that credit was not reversible when used moulds are cleared to their own sister units on returnable basis. He stressed upon the fact that two show cause notices were issued to the appellant and in both these show cause notices, there has been no allegation of suppression of facts. Even though the first show cause notices dated 7.6.2002 and 15.7.2002 were issued invoking the extended period of limitation, there is no allegation of suppression of facts. He argued that vide Order-in-Appeal dated 29.1.2004, the Commissioner (Appeals) had categorically held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Jay Yuhshin Ltd. Vs. Commissioner of Central Excise, New Delhi - 2000 (119) ELT 718 (Tri. LB). 5. Against this, the learned AR Shri K.P. Muralidharan reiterated the findings in the impugned order. He submitted that vide Order-in-Appeal dated 29.1.2004, the Commissioner (Appeals) had directed to issue a further show cause notice to the appellant. The appellant has not challenged the said decision before the Tribunal and accepted the subsequent show cause notice as well as the adjudication pursuant to the subsequent show cause notice. Therefore, he cannot contend that the subsequent show cause notice proposes to enlarge the scope of the earlier show cause notice or that it is used to plug the lacunae in the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty demand was confirmed as per such subsequent show cause notice. On perusal of both the show cause notices, we find that there is no allegation with regard to suppression of facts. It is also clear that the appellants are removing the capital goods only to their sister units and the department is fully aware of such practice adopted by the appellant. On the basis of records as well as facts, we find that the appellants cannot be saddled with suppression of facts with intent to evade payment of duty. On this ground itself, we hold that the demand is unsustainable. Moreover, the capital goods being removed to the sister units, would give rise to a situation of revenue neutrality. If there is no allegation that the capital goods have been mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
