2015 (10) TMI 123 - AT - Central Excise

Clandestine removal of goods - Demand of differential duty - Board s circular No.643/34/2002 dt. 1.7.2002 - Held that - As the issue of removal of capital goods after use and the reversal of credit thereof on the depreciated value is settled by the Hon ble High Court in the case of CCE Vs Rohini Mills (2010 (10) TMI 424 - MADRAS HIGH COURT), the said decision of Hon ble Madras High Court is squarely applicable to the present case. - appellants are liable to pay differential duty on the value of capital goods removed to their sister unit by adopting depreciation as per the Board s circular No.643/34/2002 dt. 1.7.2002 read with Circular No.495/16/1993-Cus. dt.26.5.93. The impugned order is therefore liable to be set aside. - taking into the facts and circumstances of the case, I take a lenient view that the respondents are not liable for penalty. In view of the above, the impugned order is set aside and OIO is restored to the extent of confirming the demand - Decided partly in favour of assessee.

Summary

Issues:
1. Interpretation of provisions related to the removal of capital goods to sister concern.
2. Applicability of depreciation methods under the Income Tax Act for duty calculation.
3. Relevance of circulars issued by the Board in determining duty liability.
4. Consideration of judicial precedents in similar cases.
5. Assessment of penalty in cases of duty demand.

Issue 1: Interpretation of provisions related to the removal of capital goods to sister concern
The case involved the removal of capital goods to a sister concern by the respondents, who adopted a depreciation method for duty payment as per the Income Tax Act. The dispute arose when a show cause notice was issued demanding differential duty, interest, and penalty. The adjudicating authority confirmed the demand, which was later set aside by the Commissioner (Appeals), leading to an appeal by the Revenue before the Tribunal. The Tribunal, in its earlier order, directed the adoption of a straight-line depreciation method as per a specific Board circular. However, the High Court remanded the matter back to the Tribunal for further consideration based on relevant circulars and legal provisions.

Issue 2: Applicability of depreciation methods under the Income Tax Act for duty calculation
The main contention revolved around the method of depreciation adopted by the respondents for calculating duty on the removed capital goods. The adjudicating authority had followed a Board circular for determining the value of capital goods, while the impugned order set aside this decision, stating that the circulars were not applicable to capital goods and emphasized revenue-neutrality. The Tribunal, considering the High Court's decision in a similar case, held that the respondents were liable to pay the differential duty based on the depreciation method prescribed in the Board circulars.

Issue 3: Relevance of circulars issued by the Board in determining duty liability
The Tribunal emphasized the importance of following Board circulars for determining duty liability on capital goods. It highlighted the need to consider the specific circulars related to valuation and depreciation methods while calculating the duty payable on removed capital goods. The decision was based on ensuring consistency and adherence to established guidelines in such matters.

Issue 4: Consideration of judicial precedents in similar cases
Both parties relied on various judicial precedents to support their arguments. The Revenue cited cases where appeals were allowed based on High Court orders and Tribunal decisions, indicating a consistent approach in similar matters. On the other hand, the respondent's advocate referred to specific case laws to support the findings of the impugned order, emphasizing the correctness of the Commissioner (Appeals) decision in allowing their appeal.

Issue 5: Assessment of penalty in cases of duty demand
After thorough consideration of submissions and legal precedents, the Tribunal decided to set aside the impugned order and restored the original adjudicating authority's decision to confirm the demand for the payment of differential duty and interest. However, the Tribunal took a lenient view and waived the penalty considering the facts and circumstances of the case. The decision was in line with the principles of justice and fairness while upholding the duty liability but mitigating the penalty imposition.

This detailed analysis of the judgment showcases the intricate legal considerations and interpretations made by the Tribunal concerning the issues raised in the case involving the removal of capital goods and the calculation of duty liability.