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2017 (12) TMI 316 - AT - Central ExciseCENVAT credit - capital goods installed in the factory - formation of joint venture by the appellant with 51% share - case of the department is that new joint venture was created and foam division was transferred to such joint venture, it is removal of capital goods from the appellant to joint venture. Therefore such capital goods and input lying in the joint venture premises is liable for payment of duty in accordance with Rule 3(5) CCR, 2004 - Held that: - there is no dispute that the capital goods and input on which credit was availed by the appellant and subsequently the creation of joint venture it was used by the joint venture but such goods were not removed from existing premises. The payment of duty is required to be made under Rule 3(5) only in such case whether the goods are removed from the factory. In the present case admittedly the goods were lying in the same premises and was not removed, provision of Rule 3(5) shall not apply. Identical issue decided in the case of M/s. L.G. BALAKRISHNAN AND BROS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, TRICHY [2016 (6) TMI 829 - CESTAT CHENNAI], where it was held that when there is no removal of goods under cover of invoice, as provided under rule 9, there is nothing in Rule 3 (5) to invoke the deeming fiction as insisted by the department. Appeal allowed - decided in favor of appellant.
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