Page 91 - GSTL_30th April 2020_Vol 35_Part 5

2020 ] LUPIN LTD. v. COMMISSIONER OF C. EX. & S.T. (LTU), MUMBAI 577
National Engg. India Ltd. v. Commissioner — 2010 (258) E.L.T. 97 (Tribunal) — Referred .......... [Para 3]
Ponds India Ltd. v. Collector — 1991 (56) E.L.T. 574 (Tribunal) — Referred ................................... [Para 2]
Siddharth Tubes Limited v. Commissioner
— 2008 (228) E.L.T. 193 (Tribunal) — Followed ................................................................. [Paras 2, 4.3]
DEPARTMENTAL CLARIFICATIONS CITED
C.B.E. & C. Letter F. No. 495/16/93-Cus. IV, dated 26-5-1993 ........................................................ [Para 4.1]
C.B.E. & C. Circular No. 643/34/2002-CX, dated 1-7-2002 ........................................................ [Paras 2, 4.1]
C.B.E. & C. Circular No. 813/10/2005-CX, dated 25-4-2005 ...................................................... [Paras 2, 4.1]
C.B.E. & C. Circular No. 816/13/2005-CX, dated 16-6-2005 ............................................................... [Para 2]
REPRESENTED BY : Ms. Padmavati Patil, Advocate, for the Appellant.
Mrs. A.S. Parab, AC (AR), for the Respondent.
[Order per : P. Anjani Kumar, Member (T)]. - The appellants, M/s. Lu-
pin Limited, were issued a SCN dated 8-3-2006, demanding an amount of
Rs. 6,48,801 credit availed on capital goods stock transferred, from the appel-
lants’ Mandideep Unit to Pune Unit, vide Invoice No. 2442, dated 20-2-2002 and
Invoice No. 2694, dated 25-3-2002. The original authority dropped the demand
vide Order-in-Original dated 18-2-2010. On an appeal filed by the Department,
Commissioner (Appeals) passed the impugned Order-in-Appeal dated 18-4-2011,
holding that duty, of Rs. 6,48,801 at the prevalent rate in Feb. 2002 to March 2002,
was payable on the capital goods stock transferred from their unit at Mandideep
to their unit at Pune. He confirmed the demand and imposed equal penalty.
Hence, this Appeal No. E/1014/2011.
2. Learned Counsel for the appellants submits that Rs. 10,83,032 being
Cenvat credit taken of actual duty initially paid by the supplier, was paid while
stock transferring the Cenvat availed machines. Legal fiction of treating the capi-
tal goods as having been manufactured by the recipients of the capital goods 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; this contention is substantiat-
ed from various judgments and C.B.E. & C. instructions. Learned Counsel fur-
ther submits that in any case, when capital goods are cleared “as such” or after
use, reversal of credit taken or reduced credit (allowing depreciation) is payable
based on various judgments on the issue (separate compilation) and, hence, duty
paid was more. Further, in any case, the demand for the period February &
March, 2002 covered under SCN dated 8-3-2006, is barred by limitation in the
absence of any conscious and deliberate suppression of facts, misstatements, etc.
in view of filing of periodical Returns; auditing of records, etc. As there were di-
vergent views on the issue, from time to time, extended period is not invocable.
As the reversal/payment of actual credit taken was at the time stock transfer,
neither the demand or the penalty is sustainable; there was no mens rea and,
therefore, penalty is not sustainable. He relied upon the following cases and Cir-
culars :
(i) Asia Brown Boveri - 2000 (120) E.L.T. 228 (Tribunal - LB) upheld by
Supreme Court 2001 (131) E.L.T. A149 (S.C.)
(ii) American Auto Service - 1996 (81) E.L.T. 71 (Tribunal)
(iii) Ponds India Ltd. - 1991 (56) E.L.T. 574 (Tribunal)
(iv) Eicher Tractors - 2004 (175) E.L.T. 277 (Tribunal)
(v) Eicher Tractors - 2005 (179) E.L.T. 67 (Tribunal)
(vi) Eicher Tractors - 2005 (189) E.L.T. 131 (Tri. - LB)
GST LAW TIMES  30th April 2020  91