TaxTMI 
TaxTMI 
2023 (10) TMI 868
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.... balance sheets for the aforementioned financial years in view of the plant and machinery amounting to Rs.65,73,938/-, Rs.13,85,306/- and Rs.8,10,849/- respectively. Being unsatisfied from the response given by the appellant, Department formed an opinion that they have sold their fixed asset (plant and machinery) without payment of the Central Excise duty. Consequently, vide Show Cause Notice No.1446 dated 12.12.2019, Central Excise duty of Rs.10,96,261/- was proposed to be recovered from the appellant alongwith the proportionate interest and the appropriate penalties. The proposal was initially confirmed vide Order in Original No.18 dated 30th March, 2021. The appeal against the said order has been dismissed by Commissioner (Appeals) vide ....
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....oduced 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 case of Crompton Greaves Ltd. vs. Commissioner of Central Excise, Mumbai-III reported in 2023 (383) ELT 104 (Trib.-Mumbai) ld. Council has prayed for the impugned order to be set aside and the appeal to be allowed. 6. While rebutting these submissions, ld. Departm....
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....rovisions contained in Rule 3 of Cenvat Credit Rules, 2004. At this stage, it is relevant to look into the said Rule. Sub Rule (5) of Rule 3 of CCR, 2004 is precisely applicable to the facts in hand. It reads as follows:- 17. The provisions of Rule 3(5) of the CCR, 2004 which apply to the material period are clear in this regard. It reads, - When inputs or (4) capital goods, on which Cenvat credit has been taken, are removed as such from the factory, the manufacturer of the final products shall, pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 7." (Emphasis & underlining supplied) 9. The perusal makes it abundantly c....
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.... 2007 (216) E.L.T. 217, the Tribunal has brought out how, in Rule 575(2) as it earlier stood, the expressions "without being used" and "after being used" were mentioned, and subsequently these two clauses were merged into one by using the expression "as such" which clearly shows that the expression is intended to cover both capital goods cleared without use and cleared after being put to use. Ever since the inception of the Modvat/Cenvat Scheme, capital goods, whether used or unused, were allowed to be removed from a factory only on payment of duty or on reversal of Cenvat credit taken. Initially, used capital goods could be removed after reversing proportionate credit depending upon the period of use, as per Notification 23/94-C.E., dated ....
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....fore-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 reversa....