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TMI Blog2011 (6) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... that capital goods should be cleared as such and duty payable on goods cleared as such should be equal to the credit originally taken - Held that:- The clearance of such old and used transformer though described in the invoice as transformer cannot be treated cleared as such unless it was shown that the buyer has used it as transformer and not as scrap. In the absence of evidence it should be tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unting to Rs.29,464/- on the transaction value. The department, in pursuance of the audit objection confirmed the demand of differential duty of Rs.31,262/- holding that the transformers received by them in 2004 and utilized for more than ten years and sold should be treated as and cleared 'as such'. The original authority confirmed the demand of Rs.31.262/- and imposed equal amount as penalty. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. CCE, Raigad reported in 2008 (232) ELT 29. 6. I have carefully considered the submissions and perused the records. The show cause notice alleges that the transformer has been cleared as such. It is not disputed that the transformer has been utilized for more than ten years. The claim on behalf of the appellants is that they were only sold as scrap after using the same for more than ten years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the transaction value. The decision of the Larger Bench of the Tribunal in the case of Modernova Plastyles Pvt.Ltd. is on the facts that whatever end use of the product cleared as such was the same as that of the original product. 7. In the present case, no such evidence has been relied upon, and therefore, the order of the Commissioner (Appeals) is set aside and the appeal is allowed with c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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