2017 (7) TMI 936 - AT - Central Excise

Tribunal allows appeal on cenvat credit demand for imported machinery

The Tribunal allowed the appeal of a partnership firm engaged in manufacturing Air Pollution Control Systems and Industrial Ventilation Systems, setting ... CENVAT credit - clearance of Capital goods without payment/reversal of CENVAT credit - extended period of limitation - Held that: - the factum of clearance of the used machinery was informed to the Department by the appellant vide its letter dated 29.01.2008 and this fact has been considered by the original authority - the assessee has correctly followed the provisions of law and informed the Department 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. 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. The SCN is clearly time barred - appeal allowed - decided in favor of appellant. Issues:Appeal against order setting aside Order-in-Original on demand for cenvat credit taken on imported capital goods cleared as used machinery without payment of credit - Allegation of violation of statutory provision and ignoring judicial precedents - Invocation of larger period of limitation - Compliance with Cenvat Credit Rules 2004 - Conflicting judgments by High Courts and Tribunals - Time-barred show-cause notice.Analysis:Issue 1: Violation of Statutory Provision and Ignoring Judicial PrecedentsThe appellant, a partnership firm engaged in manufacturing Air Pollution Control Systems and Industrial Ventilation Systems, imported a Lock Former TDCV Duct Flange making machine and availed cenvat credit. The machine was later cleared as used capital goods without payment/reversal of credit, leading to a demand by the Assistant Commissioner invoking Rule 3(5) of the Cenvat Credit Rules 2004. The Commissioner (Appeals) allowed the Department's appeal, prompting the appellant to approach the Tribunal. The appellant contended that the impugned order violated statutory provisions and ignored binding judicial precedents. Citing various decisions, the appellant argued that removal of used capital goods did not amount to removal of capital goods 'as such' prior to 13.11.2007, and therefore, there was no liability to pay cenvat on such removal during the relevant period.Issue 2: Invocation of Larger Period of LimitationThe show-cause notice was issued on 21.05.2009, invoking a larger period of limitation based on alleged misstatement regarding the requirement to reverse cenvat on removal of used capital goods. The appellant contended that they correctly followed the provisions of Cenvat Credit Rules 2004 existing at the time of clearance in 2006. The appellant argued that the clearance of used machinery was duly intimated to the Department, and there was no willful misdeclaration or suppression of facts. The appellant relied on the principle that conflicting judgments by High Courts and Tribunals should preclude the invocation of a larger period of limitation.Issue 3: Compliance with Cenvat Credit Rules 2004The Tribunal, in an earlier order, remanded the case back to the adjudicating authority to reconsider the limitation. The original authority, in a de novo adjudication, dropped the proceedings on grounds of time-bar, but the Commissioner (Appeals) set aside this decision. The Tribunal found that the appellant informed the Department of the clearance of used machinery and correctly followed the law. Citing the case of Hunsur Plywood Works (P) Ltd. Vs. CCE, Mysore, the Tribunal held that in the presence of conflicting judgments, the extended period of limitation was not applicable. As the show-cause notice was issued after the limitation period, the demand was deemed time-barred, leading to the setting aside of the impugned order and allowing the appeal of the appellant.This detailed analysis of the judgment highlights the key issues involved, the arguments presented by the parties, and the Tribunal's reasoning leading to the decision in favor of the appellant.