Custom, Excise & Service Tax Tribunal
M/S. Venkateshwara Flexo Pack Pvt Ltd vs Commissioner Of Customs, Central ... on 25 June, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/2065/2010-SM [Arising out of Order-in-Appeal No. 21/2010 dated 24/02/2010 (H-IV) CE passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals-II), Hyderabad.] For approval and signature: HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s. VENKATESHWARA FLEXO PACK PVT LTD H.NO.7-4-150/3, SY.NO.252, GAGANPAHD VILLAGE, RAJENDRANAGAR, MANDAL, HYDERABAD.501232. Appellant(s) Versus Commissioner of Customs, Central Excise and Service Tax HYDERABAD-IV POSNETT BHAWAN, TILAK ROAD, RAMKOTI, HYDERABAD 500 001. ANDHRA PRADESH Respondent(s)
Appearance:
Mr. BASHEER AHMED KHAN, IRS (Retd) FLAT NO.305, SRIKRISHNA BALAJI APTS, BALAJI NAGAR, MEHDIPATNAM, HYDERABAD 500 006. AP For the Appellant Mr. N. Jagadish, Superintendent (AR) For the Respondent Date of Hearing: 25/06/2015 Date of Decision: 25/06/2015 CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER Final Order No. 21433 / 2015 Per : ARCHANA WADHWA The dispute in the present appeal relates to the payment of duty in respect of cenvatable capital goods, at the time of their clearance from the factory, after putting them to some use. The appellants, after using the capital goods for more than 5 years, sold the same and discharged the duty liability on the transaction value.
2. Revenue by taking a view that appellant should have reversed the entire CENVAT credit originally availed at the time of receipt of the capital goods initiated proceedings against them resulting in confirmation of demand of Rs.11,02,016/-, which stands confirmed by the impugned orders along with interest and imposition of penalty of identical amount.
2.1 It is seen that the period involved in the present appeal is April 2005 and the show-cause notice stands issued in June 2008, by invoking longer period of limitation. Admittedly during the relevant period, there were decisions of various High Courts in favour of the assessee laying down that the capital goods, when removed after use, are required to discharge duty on the transaction value. One such reference can be made to Bombay High Courts decision in the case of Commissioner vs. Cummins India Ltd.: 2009 (234) E.L.T. A120 (Bom.). Learned advocate fairly agrees that since there were contrary decisions of other High Courts, matter was placed before the Larger Bench and in the case of Commissioner of Central Excise, Hyderabad vs. Navodhaya Plastic Industries Ltd.: 2013 (298) E.L.T. 541 (Tri.-LB), it was held that the duty is required to be discharged on the depreciated value of the capital goods. Learned advocate fairly agrees that if the depreciated value is adopted, there would be some difference of duty, which the appellant is required to pay. However, the demand stands assailed on the point of limitation.
2.2 The Honble Supreme Court in the case of Continental Foundation Joint Venture vs. CCE, Chandigarh : 2007 (216) E.L.T. 177 (S.C.) has observed that when during the relevant period there were various contrary decisions and the correctness of some of the judgments was subsequently doubted and the matter was referred subsequently to the Larger Bench, which decided against the assessee, no suppression with any mala fide intention can be attributed to the assessee, so as to justifiably invoke the longer period of limitation. The facts of the above decision of the Honble Supreme Court are fully applicable to the facts of the present case inasmuch as during the relevant period there were various decisions which hold that appellants are required to reverse the full CENVAT credit of duty on capital goods only when they are cleared as such. By following the same, I hold that the demand is barred by limitation. Accordingly, impugned order is set aside and the appeal is allowed with consequential relief to the appellants.
(Order pronounced in open court) ARCHANA WADHWA JUDICIAL MEMBER rv 3