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2016 (3) TMI 474 - AT - Central ExciseClandestine removal of capital assets from the factory - duty demand - Whether a demand can be demanded from the appellant as manufacturer of the capital goods found in their factory at the time of visit? - Held that:- The demands proposed to be raised by Revenue on the basis of the assumption and presumption without having any cogent evidence in support of their allegation. Moreover, Income Tax Department has investigated the matter thoroughly and by way of investigation, it was revealed that transactions between the dummy units and the appellants are non-existent, therefore, the question of procurement of raw materials/capital assets in the factory of the appellant does not arise. Consequently, the allegation of clandestine removal of these capital goods also does not arise. With these observations, we set aside the demand With regard to demand on account of capital goods manufactured by the appellant through labour contractors, we find that there was agreement between the contractors and the appellant wherein, the appellant were required to provide raw materials and electricity and the contractors have fabricated the capital goods at the site of the appellant and the appellant has paid job work charges to the contractors. As per agreement between the parties, the appellant has appointed labour contractors on job work basis to fabricate the impugned capital goods. We also note that the duty can be demanded from a manufacturer of the goods as it is a factum record that the impugned goods have been fabricated on job work basis by the contractors, therefore, as per the Central Excise provision, the appellant cannot be the manufacturer of the said goods. In that case, the duty is to be demanded from the contractor and not from the appellants. Therefore, we hold that the demand is not sustainable - Decided in favour of assessee
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