TMI Blog2018 (2) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... lant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals)therefore the appellant are before me. 2. Shri P.V. Sadavarte, Ld. Counsel appearing on behalf of the appellant submits that they have purchased property along with plant and machinery as is where is basis from State Industrial and Investment Co. Ltd.(SICOM) a Government of Maharashtra undertaking on which they have not availed any cenvat credit and after use for more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the Revenue reiterates the findings of the impugned order. 4. I have carefully considered the submissions made by both the sides, I find that the demand was raised for excise duty in respect of capital goods removed after use of 10 years in terms of Rule 3(5) of Cenvat Credit Rules. As per the said Rules duty is payable on removal of capital goods after use thereof only when the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. 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. Accordingly the impugned order is not sustainable, and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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