2016 (12) TMI 901 - AT - Central Excise

Demand - Interest - Penalty - Rule 3 (5A) of CCR, 2004 read with Section 11 A of the Act - Period of limitation - Held that - plant and machinery in question has been held for more than 10 years and as such under Rule 3(5) are entitled to 100% depreciation of the credit taken, if any - no case of suppression or contumaciously conduct is made out against the respondent-assessee - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Appeal against Order-in-Appeal No. 09/CE/ALLD/2013 dated 24-06-2013.
2. Demand raised under Rule 3 (5A) of CCR, 2004 read with Section 11 A of the Act.
3. Imposition of penalty under Section 11 AC of the Act.
4. Sale of plant and machinery as waste and scrap without duty payment.
5. Contestation regarding Modvat Scheme and duty liability.
6. Appeal allowed by Learned Commissioner (Appeals) based on findings.
7. Interpretation of Rule 3 (5A) and Rule 3 (5) of CCR, 2004.
8. Absence of Modvat/Cenvat credit at the time of acquisition.
9. Calculation of duty payable at the time of disposal.
10. Depreciation calculation under Rule 3(5).
11. Extended period of limitation invoked by the Revenue.
12. Dismissal of the appeal by the Tribunal.

Analysis:
The case involved an appeal against Order-in-Appeal No. 09/CE/ALLD/2013 dated 24-06-2013, where a demand of ?18,25,883/- was raised under Rule 3 (5A) of CCR, 2004 along with interest and penalty under Section 11 AC of the Act. The respondent, a manufacturer of various products, was found to have sold plant and machinery as waste and scrap without duty payment, leading to the demand. The appellant contested the demand, arguing that no Modvat or Cenvat credit was taken at the time of acquisition, hence no duty liability existed. The appeal was allowed by the Learned Commissioner (Appeals) based on the absence of evidence linking the waste and scrap to credited capital goods.

The Tribunal analyzed the provisions of Rule 3 (5A) and Rule 3 (5) of CCR, 2004, emphasizing the requirement to reverse Cenvat credit on disposal of capital assets only if credit was taken at the time of acquisition. Since no credit was taken during the purchase of the plant and machinery in question, the demand and penalty were set aside. The Tribunal also considered the depreciation calculation under Rule 3(5), allowing for 100% depreciation after holding the asset for more than 10 years. It was noted that no suppression or misconduct was established against the respondent, leading to the dismissal of the appeal by the Revenue. The Tribunal found the show cause notice invoking the extended period of limitation to be unfounded, providing consequential benefits to the respondent in accordance with the law.