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2018 (2) TMI 466 - AT - Central ExciseCENVAT credit - removal of capital goods after use - case of the department is that since the appellant have cleared capital goods as a scrap, they are liable to pay duty in terms of Rule 3(5A) of CCR 2004 - Held that: - the appellant have purchased the capital goods along with plant and machinery from SICOM, (a Government of Maharashtra undertaking) as is where is basis. At the time of purchase, admittedly no cenvat credit was availed by the appellant. This fact has been accepted by Ld. Commissioner (Appeals) in the impugned order - Moreover for the purpose of Rule 3(5A) of the Rule, it is to ascertain that whether the assessee who remove the capital goods, has availed the cenvat credit on such capital goods or otherwise. As per the fact of the present case, since the appellant has not availed the cenvat credit, demand under Rule 3(5) cannot be sustainable. Appeal allowed - decided in favor of appellant.
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