9911796707
TMI Blog2017 (7) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is a partnership firm which has been closed now. During the relevant period, the appellants were engaged in the manufacture of Air Pollution Control Systems and Industrial Ventilation Systems and their parts classifiable under CHH 8421 of the first schedule to the Central Excise Tariff Act 1985. The appellant imported Lock Former TDCV Duct Flange making machine with 12 forming stations under Bill of Entry 731635 dated 14.12.2004 and availed cenvat credit. The imported machine was used in the factory and subsequently cleared under the Central Excise Invoice No.21 dated 02.05.2006 as used capital goods without payment/reversal of cenvat credit. The Assistant Commissioner issued show-cause notice proposing to demand cenvat credit taken on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the show-cause notice was issued on 21.05.2009 invoking larger period of limitation on the ground that the assessee has mis-stated that there was no provision in the Cenvat Credit Rules 2004 for reversal of cenvat on removal of used capital goods and that there was no requirement for the assessee to reverse the credit. He further submitted that as per the various decisions of the High Court and the Tribunal wherein it has been held that the removal of used capital goods does not amount to removal of capital goods "as such" in terms of Rule 3(5) of the Cenvat Credit Rules 2004 and the liability to pay cenvat with depreciation as prescribed on removal of "used capital goods" was introduced as a provisions under Rule 3(5) only w.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the clearance of used machinery was specifically intimated to the Department and this fact has been recorded by the adjudicating authority in para 5 (n)(vi) of the Order-in-Original. He further submitted that when the assessee has correctly followed the provisions of law, then there cannot be any willful misdeclaration or suppression of fact or contravention of Cenvat Credit Rules 2004 with malafide intention. He also submitted that the Commissioner (Appeals) in para 8 has concurred with the findings in an order passed in the earlier round which was set aside and the matter was remanded for reconsideration and taking a fresh view with respect to limitation. There cannot be reliance on an order which has no legal existence. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and during the relevant time, there was conflicting judgments of the High Court and the Tribunal and therefore there cannot be any allegation of suppression in the case of Hunsur Plywood Works (P) Ltd. Vs. CCE, Mysore cited supra vide its Final Order dated 17.08.2016 has held that when there are conflicting judgments on the issue, the extended period is not invokable and that the show-cause notice was beyond the limitation period. Hence the demand was time-barred. In the present case also the show-cause notice was issued on 21.05.2009 whereas the machinery was sold vide Invoice No. 21 dated 02.05.2006. Therefore, the show-cause notice is clearly time-barred and therefore, the impugned order is set aside by allowing the appeal of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
