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TMI Blog2019 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... ute 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 sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules, 2004. The appellant was directed to reverse the Cenvat credit availed on the said capital goods, the demand was confirmed. Against the said order, the appellant approached to this Tribunal and this Tribunal remanded matter back to the adjudicating authority for de nova adjudication keeping all issues open. In remand proceedings, the appellant did not receive the hearing notices, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(5A) of Central Excise Rules, 2004 is not sustainable against the appellant in the light of the decision of this Tribunal in the case of Shree Khedut Sahakari Khand Udyog Mandli Ltd Vs. CCE & ST, Surat -I 2017 (11) TMI 1000 - CESTAT Ahmedabad. 4. He further submits that onus is on the Revnue to prove that Cenvat credit was availed by the appellant as it is cleared from the facts of the case tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of this case. In these circumstances, as facts are not in dispute, the demand under Rule 3(5A) Cenvat credit Rules, 2004 is not sustainable against the appellant. Accordingly, the same is set aside, therefore, no penalty is impossible on the appellant 7. In terms of above, the impugned order is set aside and the appeal is allowed with consequential relief, if any. (Order dictated and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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