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TMI Blog2018 (11) TMI 1810X X X X Extracts X X X X X X X X Extracts X X X X ..... llant on such items in the first place. We have perused the decision of Hon ble Supreme Court in the case of Auto Ignition Ltd. [ 2008 (4) TMI 43 - SUPREME COURT ]. The Apex Court has taken the view that in the absence of any proof, demand raised by issuing Show Cause Notices cannot be sustained. There are no justification for the demand of duty - appeal allowed - decided in favor of appellant. - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri Chandan Kumar, DGM (F) for the Appellant Shri H. S. Abedin, A. C. (A. R.) for the Revenue ORDER The appellant is engaged in the manufacture of petroleum products falling under chapter 27 of the Central Excise Tariff. They were availing the Cenvat Credit of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority of the items mentioned in the Show Cause Notices and said to have been cleared were not capital goods within the meaning of Rule (2) (a)(A) of the Cenvat Credit Rules, 2004. Most of the items were items on which no Cenvat Credit was availed by the appellant. For example, the appellant has never availed Cenvat Credit on Steel Structural and Support items falling under Chapter 72 and 73. Likewise they have never availed credit on locomotives which were purchased in 1979, much prior to MODVAT/CENVAT Credit Scheme. Some of the items are in the nature of drums packs etc. in which various consumable items were purchased. Clearance of such Waste and Scrap will not be covered by Rule 3(5A). (ii) It was also submitted on behalf of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been submitted that the Revenue has failed to establish whether any Modvat/Cenvat Credit was availed on these items, necessitating application of Rule 3 (5A). It is further submitted that most of the items in the list were not even capital goods but were various types of waste and scrap which did not arise in the factory in the course of manufacture. 8. We have perused the list of goods attached to both the Show Cause Notices. No doubt, such items are unusable waste and scrap. These are mostly worn out items such as scrap cables, components, railway railings plastic drum etc. None of the items are recognizable as capital goods. Further Revenue has failed to undertake any exercise to establish whether any credit was availed by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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