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2016 (3) TMI 399 - AT - Central ExciseInadmissibility of CENVAT credit availed on Colchester CNC crane - central excise duty demand under Section 11A along with interest and equal amount of penalty - contention of Revenue that Colchester CNC machine was used exclusively for job work and therefore CENVAT credit of duty paid thereon was not admissible - Held that:- The supplier of the crane, i.e., the sister unit of the appellant was required to pay an amount equal to credit availed in respect of the capital goods, (namely, crane in this case) when removed from the factory as such, i.e., as capital goods. Once the duty paid on the crane was shown in the invoice, the appellant was entitled to take the credit thereof. If it is contended by Revenue that duty was paid in excess, then that issue is to be taken up with the supplying unit by the concerned authority having jurisdiction over the supplying unit and it is not open to the central excise authority having jurisdiction over the appellant to question the correctness of duty paid by the supplier-unit; the receiving unit was entitled to take credit of duty shown in the invoice. Incidentally, CBEC Circular No.877/15/2008-CX, dated 17.11.2008 is supportive of this view. The appellant has clearly stated that the machine was used in its manufacturing unit. The balance-sheet figures show not only the charges received for use of the machine for job work, but also the value of dutiable goods manufactured by it. Even if initially the said machine was used only for job work, the fact is that the appellant used the said machine for manufacture of dutiable goods also, as reflected from the balance sheet for the year 2006-07 in which besides job charges, sales figures of goods manufactured are also shown. Resultantly, do not find sufficient support to sustain the allegation of inadmissibility of CENVAT credit availed on Colchester CNC crane. The said short payment has been worked out on the basis of scrap which would have “likely” generated. It obviously shows that the short-levy has been worked out by assuming certain quantity of scrap likely generated without any evidence that that quantity of scrap was actually generated. Thus, the said demand is based on assumption and presumption and hence is clearly unsustainable. - Decided in favour of assessee
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