2019 (4) TMI 164 - AT - Central Excise

CENVAT Credit - closure of business - clearance of capital goods - Rule 3(5A) of Cenvat Credit Rules, 2004 - Held that - The facts of the case are not in dispute that the appellant has taken over the unit on as is where is basis with the capital goods in question in 2001 and no Cenvat credit was taken at that time, as appellant has not taken cenvat credit on the capital goods, therefore, provision of Rule 3(5A) of Cenvat credit Rules, 2004 are not applicable to the facts of this case. The demand under Rule 3(5A) Cenvat credit Rules, 2004 is not sustainable against the appellant - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against demand confirmed under Rule 3(5A) of Cenvat Credit Rules, 2004 for clearance of capital goods.

Analysis:
The appellant acquired a paper division on an "as is where is" basis in 2001-2002 and closed their business in 2005-2006 without any plant or machinery in stock. The demand to reverse Cenvat credit on capital goods was confirmed under Rule 3(5A) of Cenvat Credit Rules, 2004. The Tribunal remanded the matter for de novo adjudication, but the appellant did not receive hearing notices, leading to confirmation of the recovery by the adjudicating authority and Commissioner (Appeal), prompting a second appeal to the Tribunal.

The appellant argued that no Cenvat credit was taken on capital goods as they were acquired before the modvat scheme was in operation. They cited a Tribunal decision to support their claim. The appellant contended that the burden of proof lies with the Revenue to show Cenvat credit availed, which was not done in this case. The Revenue, however, supported the findings of the impugned order, stating the appellant failed to provide evidence of not availing Cenvat credit.

After hearing both parties, the Tribunal found that the appellant acquired the unit with capital goods in 2001 without taking Cenvat credit at that time. As the appellant did not avail Cenvat credit on the capital goods, Rule 3(5A) of Cenvat Credit Rules, 2004 was deemed inapplicable. Consequently, the demand was set aside, and no penalty was imposed on the appellant. The impugned order was overturned, and the appeal was allowed with any consequential relief.

This judgment highlights the importance of proving Cenvat credit availed on capital goods and the burden of proof on the Revenue. It emphasizes the need for factual evidence to support claims and the application of relevant rules to specific circumstances. The decision serves as a precedent for cases involving the reversal of Cenvat credit and the sustainability of demands under Rule 3(5A) of Cenvat Credit Rules, 2004.