TMI Blog2019 (10) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... irst place. In respect of Capital Goods adequate depreciation may be given as per the rates fixed in Letter F. No. 495/16/93-Cus IV dated 26-5-1993, issued on the customs side. Further CBEC Circular No. 813/10/2005-CX dated 25-4-2005 confirms that in respect of removal of Capital goods on which credit has been taken under erstwhile sub Rule 1C of 57(AB) of CER,1944 or under Rule 3(4) of Cenvat Credit Rules, 2001 or 2002, the provisions of Rule 3(5) of Cenvat Credit Rules would apply. The learned commissioner finds that the above circulars will be applicable only for the period prior to 01.07.2002 and at the time of clearance Rule 3(4) was operational. The tribunal in the case of Siddharth Tubes ltd. [ 2008 (2) TMI 247 - CESTAT NEW D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mrs. A.S. Parab, AC (A.R) for Respondent ORDER Per : P Anjani Kumar, Member (Technical) The appellants, M/s Lupin Limited, were issued a SCN dated 8.3.2006, demanding an amount of ₹ 6,48,801 credit availed on capital goods stock transferred, from the Appellants Mandideep Unit to Pune Unit, vide invoice No.2442 dated 20.02.2002 and invoice Not. 2694 dated 25.3.2002. The original authority dropped the demand vide Order-in-Original dated 18.02.2010. On an Appeal filed by the Department, Commissioner (Appeals) passed the impugned Order-in-Appeal dated 18.4.2011, holding that duty, of ₹ 6,48,801at the prevalent rate in Feb 2002 to March 2002, was payable on the capital go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no mens-rea and, therefore, penalty is not sustainable. He relied upon the following cases and Circulars (i). Asis Brown Boveri 2000(120) ELT 228(T) upheld by Supreme Court 2001(131)ELT-T 149(SC) (ii).American Auto Service 1996(81) ELT 71(T) (iii). Ponds India Ltd 1991(56) ELT 574(T) (iv). Eicher Tractors 2004(175) ELT 277(T) (v). Eicher Tractors 2005(179) ELT 67(T) (vi). Eicher Tractors 2005(189) ELT 131(T-LB) (vii). Circular No. 643/34/2002-CX dated 1.7.2002 (viii). Circular No. 813/10/2005-CX dated 25-4-2005 (ix). Circular No. 816/13/2005-CX dated 16-6-2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer of the final products shall pay an 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 Section 4 or Section 4A of the Act, as the case may be. And such removal shall be made under the cover of an invoice referred to in Rule 7. The department relies on this Rule and Commissioner Appeals has also upheld the same. However, CBEC vide circular No 643/34/2002-CX dated 01.07.2002 holds that in that case, it would be reasonable to adopt the value shown in the invoice on the basis of which Cenvat Credit was taken by the assessee in the first place. In respect of Capital Goods adequate depreciation m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce case has clearly explained the scope of Rule57F(1)(II) and the interpretation given to the said provision in the majority order represents the correct view. We agree with the observation in the majority order in that case that the requirement of rule 57F(1)(II) is for payment of duty on inputs received for home consumption where the inputs have not been used by the manufacturer. The legal fiction of treating the inputs as having been manufactured by the recipients of the inputs was only to see that the manufacturer restores the original position by debiting the same rate of duty at which he had taken the credit. The proviso to rule 57F(1) clearly explains the rationale for creating the legal fiction by providing that duty of excise payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the department. Arguably, there were frequent changes of the law and different circulars were issued by CBEC during the relevant time. Therefore, there is scope for a different interpretation by the appellants. However, for this reason extended period cannot be invoked. Therefore, we are of the considered opinion that extended period can t be invoked under the instant case. Therefore, we find that the issue is clearly barred by limitation. The appellants have raised the issues of not allowing the benefit of depreciation and Revenue Neutrality. We don t find any reason to look in to those issues in view of our conclusions on merits and limitation. 5. In view of the above discussion, we find that the appeal survives bot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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