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2018 (10) TMI 1463 - AT - Central ExciseClandestine removal - it was alleged that appellants were clearing the excisable goods without issuing invoices as required under Rule 11 of Central Excise Rules, 2002 as found from Special Audit carried out u/s 14AA of Central Excise Act, 1944 - case of appellant is that the Principal Commissioner has not considered the documents produced by the appellants and has passed the Order merely based on assumptions and conjectures. Demand on the goods as that of MS angle, MS beam, etc. used by the appellant for construction of civil structure foundation - Held that:- It being an apparent fact that these goods were removed after being dismantled i.e. they were not treated as generated during the course of manufacture. It is appellants case that no cenvat credit was also availed on these goods. Department could not have proved otherwise. It becomes clear that note 8(a) of Section XV of Central Excise Tariff is not relevant to such operations and such items are not liable to duty even in accordance of Section 2(f) and Section 3 of the Central Excise Act, 1944 - demand set aside. CENVAT Credit - goods sent and received by the appellant to/for job-work - want of evidence for the goods to have been received back/ sent back within 180 days of re-sending / receiving them for the job-work - Held that:- With respect to the goods received by the appellant from principal manufacturers for job-work, Notification No. 214/86 comes to the appellant’s rescue by virtue of which he is not liable for payment of duty on the job- worked goods. Otherwise also, the CA certificate is simultaneously certifying the factum of sending/ receiving goods on/for job-work within 180 days thereof - these documents are sufficient to hold that the demand has wrongly been confirmed by the authority below and thus is liable to be set aside. Capital goods imported under EPCG Licences which were sent out for repairs to JSPL, Raigarh on returnable basis - demand confirmed for want of evidence of receiving the imported capital goods after repair and of non availment of cenvat credit on the said goods - Held that:- Perusal of record shows that challan for clearance of goods and EPCG license are enclosed herewith alongwith the already discussed CA certificate. Non appreciation of these documents on part of the Adjudicating Authority below is highly unappreciable. The documents once looked into, entitles the appellant as being free from the alleged liability. The demand is therefore set aside. Goods returned to the suppliers due to discrepancy or defect without availing cenvat credit - demand has been confirmed for want of any evidence - Held that:- The goods for which demand has been confirmed though were cleared on the gate passes but there is ample evidence on record to show that these goods were not manufactured by the appellant and were such on which appellant had not availed any cenvat credit - Confirmation of demand is therefore opined unsustainable. Appeal allowed - decided in favor of appellant.
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