TMI Blog2017 (4) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ailment of credit. In the present case, the availment of credit is not wrong. The revenue is seeking payment of cenvat credit only on the removal of capital goods and there is no machinery provision for recovery of duty on removal of capital goods. At the material time, no provision existed for recovery of cenvat credit in case the assessee fails to pay the excise duty on removal of capital goods. In the present case, the appellant have admittedly paid duty along with interest before issuance of SCN - The appellant have admittedly paid duty and their grievance is only against imposition of penalty and demand of interest - As regards the interest, once the appellant have admittedly paid the duty, payment of interest is inevitable and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty is required to be paid only in respect of those capital goods, which were cleared as such. In this case, the capital goods were indeed used and after use it was cleared. Therefore, there is no need to pay duty on such removal. He alternatively submits that though Rule 3(5) and/or Rule 4(5)(a) provided for payment of duty on removal of capital goods, but there is no machinery provision to recover such duty either under Rule 14 of Cenvat Credit Rules, or under any other Rules. The legislature incorporated explanation under Rule 3(5) which mandates the recovery of cenvat credit on removal of capital goods which came into effect from 01.03.2013. The period in the present case is June 2003 to May 2006, therefore during that period there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides. I find that firstly, the capital goods removal by the appellant were admittedly used in the manufacture of final product in the factory of the appellant and after use only the said capital goods were cleared to their own other unit under Rule 3(5). Duty on removal of capital goods is payable only where the capital goods is removed as such, that means without putting to use. On removal of capital goods after use there is no provision for payment of duty. Secondly, there is force in the argument of the counsel that though there is a provision for payment of duty either under Rule 3(5) or Rule 4(5)(a) on removal of capital goods but there is no machinery provision for recovery of the cenvat credit for the reason that Rule 14 only provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Act, 1944 r/w Rule 14 of CCR 2004, may be set aside. 5. From the above prayer, it is clear that the appellant have admittedly paid duty and their grievance is only against imposition of penalty and demand of interest. In these circumstances, I do not interfere in the confirmation of demand and payment thereof. As regards the interest, I am of the view that once the appellant have admittedly paid the duty, payment of interest is inevitable and the same is piggyback of the principal amount of duty. Therefore, the interest was rightly demanded. Therefore, the demand of interest and payment thereof is upheld. 6. In view of my above finding that the duty was not otherwise chargeable on the removal of capital goods, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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