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2016 (8) TMI 835 - AT - Central ExciseDemand - recovery of Cenvat credit on capital goods, Central excise duty alongwith interest and penalty and a short levy - credit was taken prior to receipt of input into the factory - Held that:- it is found that the CBEC Circular 645/36/2002-CX., dated 16.7.2002 provided that if the capital good are written off before use then the Cenvat credit availed has to be reversed. In the present case, there were no allegation that the capital goods were not used at all nor there were allegations that the Capital goods were removed from factory. We, therefore, hold that the Original Order demanding Cenvat credit, interest thereon and penalty equal to the same is not sustainable. Also there are no allegation that the inputs were not at all received in to the factory. Therefore, the demand of Cenvat credit and interest thereon and penalty equal to same is not sustainable. In respect of short levy, it is found that no evidence has been produced to establish that additional consideration was received by appellants. The levy required as per transaction value was discharged. Therefore, original order is not sustainable to extent of confirmation of Central Excise duty, interest thereon and penalty equal to the same. - Decided in favour of assessee with consequential relief
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