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2023 (11) TMI 56 - AT - Central ExciseDemand of duty by denying the benefit of exemption - Capital goods for specific use - Clearance of hydraulic excavators to contractors/construction companies - violation of Notification No.108/95 CE dated 28.08.1995 - goods withdrawn from the project or not - HELD THAT:- Regarding scope of denovo adjudication, while remanding the matter to adjudication authority, this Tribunal has not considered the plea of appellant that they have not removed the goods before completion of the project and only held that “demand against the appellant can be sustained only for one year period which is within the period of limitation” - Hence considering the issue whether the appellant violated the condition of exemption notification by removing the goods before completion of the project cannot be considered beyond the scope of remand order. There are strong force in the submissions made by the appellant that the goods supplied during the relevant period by availing the exemption notification whether withdrawn from the project has to be examined and only if it is removed before completion of the project, the benefit of notification can be denied. Merely based on presumption that few of the hydraulic excavators procured from appellant have been withdrawn from the project, few are in the process of being withdrawn and others to be withdrawn once the project is completed, no finding can be made to deny the benefit of ibid notification - There is no averment in SCN or impugned order regarding date of sale, date of removal of the goods and date of completion of the project to ascertain whether the goods were removed from the project prior to completion of the project for one year where duty confirmed. Hence in the absence of any evidence regarding removal of the goods before completion of the project, the benefit of the notification cannot be denied and the demand against the appellant is unsustainable - appeal allowed.
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