9911796707
TMI Blog2023 (10) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cenvat Credit Rules, 2004 is that the appellant would have availed the Cenvat Credit on the capital goods in question. The said condition is the bone of contention for the impugned appeal - it is observed that merely from the balance-sheet entries the department has presumed that the appellant would have availed the Cenvat Credit on the capital goods as were removed in the afore-mentioned financial years. Thus, the initial burden was of the Department / Revenue to prove the said presumption. Department has not placed on record any such document nor there is any specific allegation about any specific amount to ever been availed by the appellant as Cenvat Credit. The capital goods which are shown adjusted in the financial year 2015-16 are mentioned to have been purchased in the year 1986-89 and that they could not have been sold even as scrap. There is no evidence produced by the department to rebut or falsify the said submission - the allegations of the Department in the Show Cause Notice were merely presumptive and Department could not produce any evidence to prove those presumptions. The order has wrongly held the purchase invoices as sales invoices. Time Limitation - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With respect to the amount shown in the balance-sheets of financial year 2014-15 and 2016-17, ld. Counsel has impressed upon that on the capital goods which were purchased in these two Financial Years no Cenvat Credit was availed. Hence, no question of reversal arises. The demand is liable to be set aside on this ground. Ld. Counsel further brought to the notice that Rule 3(5) of Cenvat Credit Rules, 2004 has also been wrongly invoked by the Department as none of the conditions of the said rule applies to the appellant. It is also impressed upon that the purchase invoices were well produced before the adjudicating authorities below. Those have wrongly been mentioned as sales invoices. The document produced itself is sufficient to show that there was no possibility of availing the Cenvat Credit as there is no mention of excise duty availed in the purchase invoices. 4. Para 10 of the appeal as was filed before Commissioner (Appeals) has been brought to the notice wherein the documentary evidence as that of work contract about purchase of the capital assets is mentioned to have been provided to Commissioner (Appeals). 5. While relying upon the decision of this Tribunal in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made under the cover of an invoice referred to in Rule 7. (Emphasis underlining supplied) 9. The perusal makes it abundantly clear that it shall apply to such inputs or capital goods on which Cenvat Credit has been taken and that such capital goods have been sold as such. There is no denial to the fact that the goods which have been sold by the appellant were such assets which have been used by the appellants since its purchase till the date of those were sold. Resultantly, one condition of the above quoted provision i. e. goods are removed as such stands un-complied with the meaning of the expression as such has been clarified by the Larger Bench of this Tribunal in the case of M/s. Modemova Plastyles Pvt. Ltd. 2008 (232) E.L.T. 29 (Tri.-LB) which reproduced as below:- The issue is no longer 17.1 res integra. I am guided in this regard by the Larger Bench decision of the Hon ble CESTAT in the case of M/s. Modernova Plastyles Pvt. Ltd. - 2008 (232) E.L.T. 29 (Tri. - LB) and wherein while distinguishing the Hon ble Bombay High Court decision in Cummins India, it has been held thus - The expression as such has to be 2. interpreted as commonly unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cenvat Credit on the capital goods in question. The said condition is the bone of contention for the impugned appeal. I observe that merely from the balance-sheet entries the department has presumed that the appellant would have availed the Cenvat Credit on the capital goods as were removed in the afore-mentioned financial years. Thus, I am of the opinion that the initial burden was of the Department / Revenue to prove the said presumption. Department has not placed on record any such document nor there is any specific allegation about any specific amount to ever been availed by the appellant as Cenvat Credit. I also observe that following is the response of the appellant since the stage of filing reply to the Show Cause Notice:- Period Demand (Pg.95) Ground 2014-15 8,21,742/- Relate to such capital goods on which no credit was availed, hence, no reversal required. 2015-16 1,73,163/- Relates to goods primarily purchased in 1986-1989 (pg.112), which were destroyed in factory and have not been sold, even as scrap. No re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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