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TMI Blog2012 (11) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice alleges is that such capital goods had also been removed on payment of duty at tariff rate. May be, the assessee might not have claimed depreciation of value, but this is inconsequential insofar as the present dispute is concerned. Payment of duty on the subject capital goods is in accordance with the view expressed by binding judicial authorities and hence in order - demand of differential duty cannot be sustained - impugned order is, therefore, set aside and appeal of assessee is allowed. - CEA No. 1386 of 2010 - - - Dated:- 13-11-2012 - Mr. P.G. Chacko, J. Appearance: Mr. B. Venugopal, Advocate for appellant Ms. Sabrina Cano, Superintendent (AR) for respondent This appeal filed by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2008 (232) E.L.T. 29 (Tri.-L.B.)] wherein the expression removed as such used in the text of Rule 3(4) of the CCR, 2002 and the text of its equivalent provision [Rule 3(5)] of the CCR, 2004 was interpreted to mean removed without having been used. The appellate authority, accordingly, demanded from the assessee the difference between the CENVAT credit taken on the capital goods and the amount of duty paid in March 2004 on its depreciated value at tariff rate. The learned Commissioner (Appeals), however, refrained from imposing penalty on the party. The present appeal of the assessee is directed against the appellate Commissioner s order. 2. It is submitted by the learned counsel for the appellant that the question whether the CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. According to her, it is a vital factor to be considered in the context of taking a decision on the question whether the appellant should be held liable to pay duty on the subject capital goods on its original value. With reference to the case law cited by the learned counsel, it is, however, not claimed that any of the cited decisions has been reversed or stayed by the competent appellate court. 4. After giving careful consideration to the submissions, I have to follow the view concurrently held by two High Courts and consistently followed by this Tribunal. The Hon ble Punjab Haryana High Court and the Hon ble Madras High Court have held that the expression removed as such used in the text of Rule 3(4)/Rule 3(5) of the CCR 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned. 6. In the result, it is held that the payment of duty on the subject capital goods is in accordance with the view expressed by binding judicial authorities and hence in order. The demand of differential duty cannot be sustained. The impugned order is, therefore, set aside and the appeal of the assessee is allowed. 7. At this stage, I am told that there is an appeal (E/735/2009) of the department against the same order of the Commissioner (Appeals), wherein the grievance of the appellant is that the lower appellate authority unjustifiably refrained from imposing penalties on the assessee. The fate of this appeal of the department is already well known. However, as the appeal has not been listed and its records are not forthcomi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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