Page 93 - GSTL_30th April 2020_Vol 35_Part 5

2020 ] LUPIN LTD. v. COMMISSIONER OF C. EX. & S.T. (LTU), MUMBAI 579
4.2 However, we find that this issue has been gone into by the Tribunal
in a number of cases as submitted by the appellant. Tribunal, in the case of ABB
(supra) observed that
On consideration of the case law and the arguments advanced before us
we’re of the considered view that a larger bench decision of the Tribunal in
the American Auto Service case has clearly explained the scope of Rule
57F(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 ma-
jority order in that case that the requirement of Rule 57F(1)(II) is for pay-
ment 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 on-
ly 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 provid-
ing that duty of excise payable at the time of removal of home consumption
shall not be less than the amount of credit that has been allowed in respect
of inputs under 57A. As has been observed by the majority in the larger
bench decision in American Auto Services case, the provision is intended to
provide the same benefit availed of by the revenue where the rate of duty
has gone down during the interregnum.
We find that the above decision has been upheld by the Hon’ble Supreme Court.
4.3 We also find that the Tribunal in the case of Siddharth Tubes Ltd. -
2008 (228) E.L.T. 193 (Tri. - Del.) held that “We find that no evidence has been
brought on record to show that the Unit No. 1 has partly sold the inputs HR.
coils to the independent buyers at higher price. Therefore, the action of Unit No.
1 to reverse the credit taken on the inputs cleared as such to the Unit No. 2 in
terms of the highlighted portion of the Board’s circular dated 1-7-2002 can’t be
faulted. This case has also been upheld by the Hon’ble Supreme Court in 2016
(342) E.L.T. A31 (S.C.). In view of the above, we find that the appellant’s case is
squarely covered by the decision cited and therefore the issue is no longer res
judicata. Moreover, the demand pertains to February and March, 2002. The show
cause notice is issued on 8-3-2006. The appellants have been regularly submitting
the ER-1 and regular audit of the appellants was also being undertaken. No case
of deliberate suppression of facts etc. has been made out by the department. Ar-
guably, there were frequent changes of the law and different circulars were is-
sued by C.B.E. & C. during the relevant time. Therefore, there is scope for a dif-
ferent 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 allow-
ing the benefit of depreciation and revenue neutrality. We don’t find any reason
to look into those issues in view of our conclusions on merits and limitation.
5. In view of the above discussion, we find that the appeal survives
both on merits and on limitation. Accordingly, the appeal is allowed.
(Order dictated and pronounced in open Court)

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GST LAW TIMES  30th April 2020  93