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2021 (9) TMI 695 - CESTAT AHMEDABADDemand of amount collected in the name of duty u/s 11D - CENVAT credit - inputs or capital goods - imported Box Strapping Machines - said machines cleared as such on payment of duty equivalent to Cenvat credit availed in respect of CVD paid - Rule 5(3) of Cenvat Credit Rules, 2004 - HELD THAT:- Right upto the Commissioner (Appeals) order the entire case was decided against the appellant on the premise that the appellant is not entitled for Cenvat credit on imported Box Strapping Machine as the same is falling under Chapter 39. On perusal of record and bills of entry, it is found that it is factually incorrect basis as the correct chapter heading of imported Box Strapping Machine is under heading 84229090. Since this is correct Chapter heading, imported Box Strapping Machine clearly fall under the definition of capital goods which covers the goods under chapter 84 as capital goods - the goods whether used for the manufacture of final product or lying in the factory of the assessee, Cenvat credit on capital goods is admissible. Moreover, the appellant have cleared the imported Box Strapping Machine as such on payment of excise duty which is equivalent to the Cenvat credit availed thereon. For this reason also, no demand can be raised as the appellant is eligible for Cenvat on capital goods cleared as such, in terms of Rule 5(3) of Cenvat Credit Rules, 2004. There is no fault on the part of the appellant either for availing Cenvat credit or for removal of the same on payment of duty. Therefore, the disallowance of Cenvat credit as well as demand under Section 11D are set-aside - Appeal allowed - decided in favor of appellant.
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