TMI Blog2017 (6) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... ises of the assessee. As per undisputed facts of this case all the capital goods were admittedly cleared after substantial use - , in case of removal of used capital goods, the duty equal to cenvat credit availed cannot be leviable - appeal allowed - decided in favor of appellant. - E/1948/10 - A/87513/17/SMB - Dated:- 26-5-2017 - Shri Ramesh Nair, Member (Judicial) Shri Rajesh Ostwal, Advocate for Appellant Shri N.N. Prabhudesai, Supdt. (A.R) for respondent ORDER The issue involved in the present case is that in terms of Rule 3(5) of Cenvat Credit Rules, 2004 whether an assessee is required to pay duty equal to the total amount of Cenvat Credit availed on capital goods or on transaction value when it is cleared after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction value and in a case where the capital goods cleared to their own unit, the duty was paid on depreciated value. He submits that as per Rule 3 (5) of the Cenvat Credit Rules, prevalent at the material period there was no provisions of payment of any duty to the capital goods if it is cleared after use. Therefore even the appellant was not required to pay the duty on removal after use of capital goods, still they have paid which they have not contested. 3. On the other hand, Shri N. N, Prabhudesai Ld. Supdt. (A. R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the issue is covered by the Larger Bench in the case of Modernova Plastyles Pvt. Ltd. (supra) and this Tribunal's dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill remain as such though looking to the nature of the capital goods, as regard structure of the machine it never gets changed, therefore under any circumstances the capital goods will remain as such only and if it is so then there will be no case where there is a removal of capital goods other than in a condition 'as such'. In my view term 'as such' means the capital goods is cleared from the factory of the assessee without put to use or installed that will fall under term as such Other than the condition as such , the only situation is that the capital goods being put to use and thereafter it is cleared after substantial use then it does not remain as such . Therefore, in the present case, when the capital goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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