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TMI Blog2018 (10) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant for construction of civil structure foundation - Held that:- It being an apparent fact that these goods were removed after being dismantled i.e. they were not treated as generated during the course of manufacture. It is appellants case that no cenvat credit was also availed on these goods. Department could not have proved otherwise. It becomes clear that note 8(a) of Section XV of Central Excise Tariff is not relevant to such operations and such items are not liable to duty even in accordance of Section 2(f) and Section 3 of the Central Excise Act, 1944 - demand set aside. CENVAT Credit - goods sent and received by the appellant to/for job-work - want of evidence for the goods to have been received back/ sent back within 180 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple evidence on record to show that these goods were not manufactured by the appellant and were such on which appellant had not availed any cenvat credit - Confirmation of demand is therefore opined unsustainable. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... . Amit Jain & Mr. Rahul Tangri, Ld. Advocates for the appellant and Mr. H.C. Saini, Ld. DR for the Department. 3. It is submitted on behalf of the appellant that the Principal Commissioner has not considered the documents produced by the appellants and has passed the Order merely based on assumptions and conjectures. Ld. Counsel has relied upon the following to impress upon that the demand based on assumption in absence of any positive evidence is not sustainable as far as the allegations of clandestine removal are concerned: * Oudh Sugar Mills Ltd. Vs. Union of India 1978 (2) ELT (J172) (S.C.) * CCE, Delhi Vs. Biharji Manufacturing Co. Pvt. Ltd. 2015 (323) E.L.T. 106 (Delhi) affirmed by Supreme Court in Commissioner Vs. Biharji Manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the speaking Order that certain demand has already been dropped. The demand confirmed is impressed to have no infirmity. Appeal is prayed to be dismissed. 5. After hearing both the parties and perusing the entire record, we are of the opinion that vide the impugned Show Cause Notices, the appellant was observed to have cleared following kinds of goods in addition to the goods manufactured by the appellants:- (a) Non-cenvat availed goods (including waste & scrap obtained on dismantling of factory shed) cleared from the factory, (b) Goods received for job-work, (c) Goods sent for job-work, (d) Transfer of goods within the same factory premises, from one division/ plant to another, (e) Capital goods imported under EPCG sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S angles, MS beams, etc. Otherwise also, these goods were not manufactured by the appellant and as such were not excisable in his hands. In the given circumstances, it was the onus of the Department to prove that the goods were manufactured by the appellant or that the appellant has availed cenvat credit thereupon but there is no such evidence on record. The Hon'ble Apex Court in Auto Ignition Ltd (supra) has held that onus of proof to availment of credit by the assesse lies on the Revenue and the demand in absence of said proof is not sustainable. It being an apparent fact that these goods were removed after being dismantled i.e. they were not treated as generated during the course of manufacture. It is appellants case that no cenvat credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has also been confirmed for want of evidence of receiving the imported capital goods after repair and of non availment of cenvat credit on the said goods. However, perusal of record shows that challan for clearance of goods and EPCG license are enclosed herewith alongwith the already discussed CA certificate. Non appreciation of these documents on part of the Adjudicating Authority below is highly unappreciable. The documents once looked into, entitles the appellant as being free from the alleged liability. The demand is therefore set aside. (iv) Goods returned to the suppliers due to discrepancy or defect without availing cenvat credit Again the demand has been confirmed for want of any evidence. The CA certificate as repeatedly bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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