Page 90 - GSTL_30th April 2020_Vol 35_Part 5

576 GST LAW TIMES [ Vol. 35
2020 (35) G.S.T.L. 576 (Tri. - Mumbai)

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI
Dr. D.M. Misra, Member (J) and Shri P. Anjani Kumar, Member (T)
LUPIN LTD.
Versus
COMMISSIONER OF C. EX. & S.T. (LTU), MUMBAI
Final Order No. A/86623/2019-WZB, dated 18-3-2019 in Appeal No. E/1014/2011
Cenvat credit - Capital goods stock removed to sister concern - Rate of
Duty - Reversal/payment of actual credit taken at time of stock transfer - De-
partment contending that assessee required to pay duty in terms of sub-rule (4)
of Rule 3 of Cenvat Credit Rules, 2001 - HELD : Issue relating to whether duty
equal to credit to be payable on clearance of Cenvat availed capital goods or at
rate and value prevalent on date of clearance, deeming that capital goods man-
ufactured by assessee - Assessee’s case squarely covered by Asia Brown Boveri
Ltd. [2000 (120) E.L.T. 228 (Tribunal - LB)] and Siddharth Tubes Ltd. [2008 (228)
E.L.T. 193 (Tri. - Del.)] - Therefore, issue no longer res judicata - Rule 3(4) of
Cenvat Credit Rules, 2002. - C.B.E. & C. vide Circular No. 643/34/2002-CX, dated 1-
7-2002 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 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 C.B.E.
& C. 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 Rule
57AB of erstwhile Central Excise Rules, 1944 or under Rule 3(4) of Cenvat Credit Rules,
2001 or 2002, provisions of Rule 3(5) of Cenvat Credit Rules would apply. [paras 4, 4.1,
4.2, 4.3]
Demand - Limitation - Extended period, invocation of - Removal of
capital goods stock to sister concern upon reversal of actual credit taken there-
on - HELD : Demand pertains to February and March, 2002 and show cause
notice issued on 8-3-2006 - Assessee submitting ER-1 regularly and regular au-
dit of assessee also being undertaken - No case of deliberate suppression of
facts etc. made out by department - Also, frequent changes of law and differ-
ent circulars issued by C.B.E. & C. during relevant time therefore, different
interpretation by assessee, possible - Extended period cannot be invoked -
Demand clearly barred by limitation - Section 11A of Central Excise Act, 1944
corresponding to Section 73 of Finance Act, 1994. [para 4.3]
Appeal allowed

CASES CITED
Collector v. American Auto Service — 1996 (81) E.L.T. 71 (Tribunal) — Referred ......................... [Para 2]
Commissioner v. Asia Brown Boveri Ltd. — 2001 (131) E.L.T. A149 (S.C.) — Followed ........ [Paras 2, 4.2]
Commissioner v. Asia Brown Boveri Ltd.
— 2000 (120) E.L.T. 228 (Tribunal - LB) — Followed ......................................................... [Paras 2, 4.2]
Commissioner v. Siddharth Tubes Limited — 2016 (342) E.L.T. A31 (S.C.) — Followed ............ [Para 4.3]
Eicher Tractors v. Commissioner — 2004 (175) E.L.T. 277 (Tribunal) — Referred .......................... [Para 2]
Eicher Tractors v. Commissioner — 2005 (179) E.L.T. 67 (Tribunal) — Referred ............................ [Para 2]
Eicher Tractors v. Commissioner — 2005 (189) E.L.T. 131 (Tri. - LB) — Referred ........................... [Para 2]
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