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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 ..... able to adopt the value shown in the invoice on the basis of which Cenvat Credit was taken by the assessee 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. The learned commissioner finds that the above circulars will be applicable only for the period prior to 01.07.2002 and at the time of clearance Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rab, AC (A.R) for Respondent ORDER Per : P Anjani Kumar, Member (Technical) The appellants, M/s Lupin Limited, were issued a SCN dated 8.3.2006, demanding an amount of ₹ 6,48,801 credit availed on capital goods stock transferred, from the Appellants Mandideep Unit to Pune Unit, vide invoice No.2442 dated 20.02.2002 and invoice 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 ₹ 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. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses and Circulars (i). Asis Brown Boveri 2000(120) ELT 228(T) upheld by Supreme Court 2001(131)ELT-T 149(SC) (ii).American Auto Service 1996(81) ELT 71(T) (iii). Ponds India Ltd 1991(56) ELT 574(T) (iv). Eicher Tractors 2004(175) ELT 277(T) (v). Eicher Tractors 2005(179) ELT 67(T) (vi). Eicher Tractors 2005(189) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rule 7. The department relies on this Rule and Commissioner Appeals has also upheld the same. However, CBEC vide circular No 643/34/2002-CX dated 01.07.2002 holds that in that case, it would be reasonable to adopt the value shown in the invoice on the basis of which Cenvat Credit was taken by the assessee 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufactured by the recipients of the inputs was only to see that the manufacturer restores the original position by debiting the same rate of duty at which he had taken the credit. The proviso to rule 57F(1) clearly explains the rationale for creating the legal fiction by providing that duty of 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 Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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