2018 (7) TMI 1363 - AT - Central Excise

Invocation of extended period of Limitation - Revenue neutrality - Short payment of duty on clearance of Capital goods to other unit - wrong calculation of Depreciation - Held that - The appellant has in fact paid the Central Excise duty at the time of clearance of the capital goods to their other unit. The Revenue has noticed the liability for differential duty only during the course of audit. Under these circumstances it cannot be said that the appellant has suppressed the facts from the Department. Since the facts in the present case also leads to situation of Revenue neutrality this is not a fit case for invoking the extended period of limitation - demand raised on the ground of limitation is not justified. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Time limitation for demand of differential duty
2. Availability of cenvat credit for differential duty paid
3. Revenue neutrality in clearance of goods to sister unit

Analysis:
1. The appeal challenged an Order-in-Appeal regarding the demand of differential duty on used capital goods cleared to another unit. The Department issued a show cause notice for short payment of duty, which the appellant contested on the grounds of time limitation. Both authorities below upheld the demand and penalty. The appellant argued that the demand was time-barred as it pertained to May 2013 clearance, invoking the extended period unjustified. The Revenue justified the order, citing the appellant's admission of duty demand and the proper invocation of the extended time limit.

2. The appellant contended that the differential duty paid would be available as cenvat credit to the receiving unit, leading to Revenue neutrality. Reference was made to a Gujarat High Court case for a similar scenario. The Revenue supported the demand, referencing a Tribunal decision upholding the differential duty even in Revenue-neutral situations. The Tribunal noted the dispute arising from the calculation of depreciation and the subsequent demand for differential duty, emphasizing the appellant's payment of duty at clearance.

3. The Tribunal found merit in the appellant's argument regarding Revenue neutrality due to the clearance of goods to the appellant's sister unit. Citing the Gujarat High Court decision, the Tribunal emphasized that the situation resulted in Revenue neutrality, making it inappropriate to invoke the extended period for duty demand. The Tribunal referenced various decisions supporting the Revenue-neutral scenario, ultimately setting aside the impugned order and allowing the appeal.