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TMI Blog2009 (12) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... nery had been purchased in the year 1980-81 as capital goods and no Cenvat credit has been availed, Department was of the view that at the time of clearance of this old and used machinery, as per the provisions of sub-rule (4) of Rule 3 of Cenvat Credit Rules, 2002, an amount equal to the duty at the prevailing rate chargeable on the transaction value of the goods determined under Section 4 of Central Excise Act, 1944 is required to be paid, as the appellant have not been able to produce any evidence in support of their claim that no Cenvat credit had been availed. Another issue in this appeal is that the Department found that in respect of the inputs purchased under Invoice No. 542 dated 16-3-04, 489 dated 14-3-04, 31 dated 19-1-04 and 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 read with Section 11AC of Central Excise Act. On appeal to Commissioner (Appeals), the Commissioner (Appeals) by order-in-appeal 260-CE/GZB/08 dated 20-11-08 upheld the Additional Commissioner s order and rejected the appeal. It is against this order of the Commissioner (Appeals) that present appeal has been filed. 3. None appeared for the appellant. 3.1 Heard learned JCDR Shri V.K. Saxena who reiterating the Commissioner (Appeals) s findings, defended the impugned order emphasising that since the appellant had cleared capital goods as such and no evidence has been produced that Cenvat credit had been availed in respect of those capital goods, as per the provisions of sub-rule 4 of Rule 3 of Cenvat Credit Rules, 2002, an amount equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been purchased in the year 1980-81 and there is no question of any taking Cenvat credit. The Department has also not produced any evidence to the contrary showing that any Cenvat credit had been taken. The amount under Rule 3(4) at the time of removal of old capital goods cannot be demanded on the presumption that Cenvat credit had been taken when assessee pleads that no Cenvat credit had been taken and the department has no evidence or no records to prove the contrary. In view of this, Cenvat credit demand of Rs. 5,36,800/- is not sustainable. 4. As regards the demand of Cenvat credit of Rs. 3684/-, the appellant had issued some debit notes and according to them, these debit notes had been issued in respect of cash discount given by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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