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TMI Blog2019 (10) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... voice Not. 2694 dated 25.3.2002. The original authority dropped the demand vide Order-in-Original dated 18.02.2010. On an Appeal filed by the Department, Commissioner (Appeals) passed the impugned Order-in-Appeal dated 18.4.2011, holding that duty, of Rs. 6,48,801at the prevalent rate in Feb 2002 to March 2002, was payable on the capital goods stock transferred from their unit at Mandideep to their unit at Pune. He confirmed the demand and imposed equal penalty. Hence, this Appeal No E/1014/2011. 2. Learned Counsel for the appellants submits that Rs. 10,83,032 being Cenvat Credit taken of actual duty initially paid by the supplier, was paid while stock transferring the Cenvat availed machines. Legal fiction of treating the capital goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 131(T-LB) (vii). Circular No. 643/34/2002-CX dated 1.7.2002 (viii). Circular No. 813/10/2005-CX dated 25-4-2005 (ix). Circular No. 816/13/2005-CX dated 16-6-2005 (x). Sidharth Tubes 2008(228) ELT 193( Tri-Del) 3. The learned Authorised representative for the department reiterated the findings of the OIA and relied upon National Engineering India Ltd Vs CCE Jaipur-I 2010(258) ELT 97(Tri-Delhi) 4. Heard both sides and perused the records of the case. Brief issue involved in the case is to whether duty equal to credit is payable on clearance of Cenvat availed Capital Goods by the from the Appellants or duty is payable at the rate and value prevalent on the date of clearance, deeming that the capital goods are manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee in the first place. In respect of Capital Goods adequate depreciation may be given as per the rates fixed in Letter F. No. 495/16/93-Cus IV dated 26-5-1993, issued on the customs side. Further CBEC Circular No. 813/10/2005-CX dated 25-4-2005 confirms that in respect of removal of Capital goods on which credit has been taken under erstwhile sub Rule 1C of 57(AB) of CER,1944 or under Rule 3(4) of Cenvat Credit Rules, 2001 or 2002, the provisions of Rule 3(5) of Cenvat Credit Rules would apply. Rule 3(5) of Cenvat Credit Rules, 2004 reads as under : When inputs or capital goods, on which Cenvat credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f excise payable at the time of removal of home consumption shall not be less than the amount of credit that has been allowed in respect of inputs under 57A. As has has been observed by the majority in the larger bench decision in American Auto Services case, the provision is intended to provide the same benefit availed of by the revenue where the rate of duty has gone down during the interregnum. We find that the above decision has been upheld by the Hon'ble Supreme court. 4.3. We also find that the tribunal in the case of Siddharth Tubes ltd. 2008(228) ELT 193(Tribunal-Delhi) held that "We find that no evidence has been brought on record to show that the unit no.1 has partly sold the inputs HR coils to the independent buyers at higher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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