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TMI Blog2015 (1) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... as such the Assessee shall be liable to pay duty equal to amount of Cenvat Credit availed. The machines which are cleared after utilization cannot be treated as machines cleared as such. - The machine cleared after putting into use for nine years cannot be treated as Cleared ‘as such’. Insertion of proviso w.e.f. 13.11.2007 makes it clear that there is difference between machines cleared without putting into use and cleared after use – Following decision of Commissioner Central Excise Commissionerate Versus M/s Raghav Alloys Ltd. [2010 (4) TMI 294 - PUNJAB & HARYANA HIGH COURT] - decided in favor of assessee. - Appeal No. E/1978/10 - - - Dated:- 19-9-2014 - Anil Choudhary, J. For the Respondent : Shri V K Agarwal, Addl. Commr. (AR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,880/- in terms of Section 11A(1) read with Rule 14 of the CENVAT Credit Rules, 2004 and Section 11AB Rule 15(2) of the CENVAT Credit Rules, 2004 were invoked for recovery of interest imposition of penalty and the amount paid was ordered for adjustment. Since the appellant had failed to determine the correct duty liability resulting in short levy it was alleged that they had contravened the provisions of Sections 4(1)(a) 11A(1) of Central Excise Act, 1944 Rule 6 of the Valuation Rules and Rules 4, 6 8 of the Central Excise Rules, 2002 with an intent to evade payment of duty. 3. The impugned demand was confirmed vide Order-in-Original dated 25.03.2010 confirming the alleged short payment of ₹ 46,880/- under Section 11A(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of use, as it is different from 'removal as such'. Accordingly the second proviso of Rule 3(5) of CENVAT credit Rule, will be applicable in the appellants case and CENVAT credit payable needs to be reduced @2.5% for each quarter of a year or part thereof from the date of taking credit. 3.2 It was further contended that in the facts, the appellant had not removed the capital goods 'as 'such', but after use, hence the provisions of Rule 3(5) as it stood on the date of removal i.e. 4.11.2005 was not applicable and the appellant have rightly paid duty on transaction value. 3.3 The Commissioner (Appeals) rejecting the appeal was pleased to uphold the Order-in-Original on the finding that the amendment in Rule 3(5) w.e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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