2017 (6) TMI 897

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....ailed /duty paid for removal of the capital goods. 3. The brief facts of the case are that the appellants are engaged in the manufacture of plastic moulded furniture, crates etc. in their factories located in different parts of the country. The steel mould required for manufacture of aforesaid furniture and crates are either imported or locally procured by one unit were being sent to other units also for use in the manufacture of furniture and crates. The moulds are identified by its name like Mould Maxi, Mould Lily, Mould Crown, Mould Sumo, Mould Oskar, Mould Coral etc. That no two moulds were either with the same name or same nature. Thus, each moulds can be identified by its name itself. The appellants unit at Pondicherry availed CENVAT....

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....authority directed to issue show cause notice to the appellant as to which method of depreciation is to be adopted and then decide the issue. The appellant was thus issued a show cause notice dated 11.5.2004 in both these appeals proposing to invoke written down value method for arriving at the depreciated value of the goods. In this show cause notice also, there was no allegation of suppression of facts. Pursuant to the subsequent show cause notice, the original authority confirmed the duty demand by arriving at the depreciated value adopting written down value method. The appellants carried the issue in appeal before the Commissioner (Appeals) and vide order impugned, the Commissioner (Appeals) held that written down value method cannot b....

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....issue further show cause notice to rectify the defect. That the subsequent show cause notice enlarges the limitation and also to plug the lacunae in the show cause notices issued earlier. Therefore, the confirmation of duty is not sustainable. He also argued that the issue whether credit has to be reversed when used capital goods are removed was highly contentious during the relevant period and the issue travelled upto the Larger Bench of the Tribunal and therefore extended period is not invocable. He relied upon the judgment in the case of Commissioner of Central Excise Vs. HMM Ltd. as reported in 1995 (76) ELT 497 (SC) to contend that the show cause notice should allege suppression of facts for invoking the extended period. The case of St....

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....the credit. Therefore, the duty raised is legal and proper and that the Commissioner (Appeals) in the impugned order has given benefit of reduced duty demand by applying straight line method in determining the depreciation that has to be applied. 6. We have heard both sides and considered their submissions. 7. At the outset, we have to say that vide Order-in-Appeal dated 29.1.2004, the Commissioner (Appeals) has held that the demand raised in the earlier show cause notice proposing to demand duty adopting 115% value of the cost of production is ab initio unsustainable. But, however, he proceeded to direct the adjudicating authority to issue a further show cause notice which, in our view, transgresses the powers vested on the first appella....