2010 (3) TMI 645 - AT - Central Excise

Duty payable on capital goods Removal of capital goods without any use to another unit - removed the capital goods after intimation to the Department Higher rate applicable at the time of clearance duty paid amounting to credit taken - pay the duty on the said goods as if manufactured and cleared by their unit and differential duty along with interest and imposed equal amount as penalty Held that - if the higher amount was paid at the time of removal from factory, the respondent was entitled to the said higher amount as credit - Commissioner (Appeals) setting aside the demand and consequently the penalty does not call for any interference

Summary

Issues:
- Appeal against order of Commissioner (Appeals) dated 21-1-2008 regarding capital goods and Modvat credit under Rules 57Q.
- Interpretation of Rule 57-S(1)(ii) for payment of duty on capital goods removed from one unit to another within the same legal entity.
- Application of Rule 57 for using capital goods in a different factory of the same manufacturer.
- Time-barred show cause notice for demand of duty dated 31-10-2002.

Analysis:
1. The appeal before the Appellate Tribunal CESTAT, New Delhi pertained to the Department challenging the order of the Commissioner (Appeals) dated 21-1-2008 concerning the receipt, removal, and utilization of capital goods by the respondent under Rules 57Q. The respondent received capital goods at one unit and later transferred them to another unit within the same legal entity, leading to a dispute over the payment of duty on these goods.

2. The Department contended that since the capital goods were not installed or utilized at the initial unit and were subsequently removed to another unit, duty should be paid as if the goods were manufactured and cleared by the first unit. The Department sought to set aside the Commissioner (Appeals) order and reinstate the original authority's decision.

3. The respondent argued that due to unavoidable circumstances, the capital goods could not be used at the first unit but were transferred to the second unit of the same manufacturer for intended use. The respondent emphasized that the removal was duly intimated to the Excise Authorities, and any higher duty paid at the time of clearance from the first unit was available as credit at the second unit, ensuring revenue neutrality.

4. The Tribunal analyzed the situation and noted that the respondent, as a legal entity with multiple units, had transferred the capital goods between its units with proper intimation to the authorities. The Tribunal observed that Rule 57 allows for the use of capital goods in the factory of the manufacturer of the final product, even if in a different location. The Tribunal concluded that there was no irregular benefit availed by the respondent and that the situation amounted to revenue neutrality.

5. Consequently, the Tribunal upheld the order of the Commissioner (Appeals) setting aside the demand for duty and penalty. The Tribunal found no grounds to interfere with the decision, considering the legitimate transfer of capital goods within the same legal entity and the compliance with relevant rules and notifications.

6. The appeal by the Department was rejected by the Tribunal, affirming the decision of the Commissioner (Appeals) in favor of the respondent regarding the payment of duty on capital goods transferred between units of the same manufacturer within the legal entity.