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2023 (10) TMI 868 - AT - Central ExciseLevy of Excise Duty - sale of fixed asset (plant and machinery) - applicability of Sub Rule (5) of Rule 3 of CCR, 2004 - time limitation - HELD THAT:- Rule 3(5) 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 MODERNOVA PLASTYLES PVT. LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2008 (10) TMI 51 - CESTAT, MUMBAI]. The other condition for the applicability of rule 3 (5) 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 - HELD THAT:- The Show Cause Notice is miserably silent about any allegation of malafide, willful suppression etc. on the part of appellant to evade the impugned amount. Hence any basis for invoking the extended period of limitation is found absolutely missing in the present case. Resultantly, the Show Cause Notice itself gets hits by the time limitation. Appeal allowed.
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