TMI Blog2010 (8) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice. If the noticee is not brought to charges, he should never face charges by any order passed beyond show cause notice. What that was not a cause cannot be converted into a cause in adjudication order or an appellate order. - E/2310/2007-SM(BR) - 951/2010-SM(BR)(PB) - Dated:- 27-8-2010 - Shri D.N. Panda, Member (J) REPRESENTED BY : Shri Bipin Garg Advocate, for the Appellant. Shri Anil Khanna, SDR, for the Respondent. [Order]. This appeal has been preferred by the appellant in view of the disallowance of Cenvat credit by both the authorities below. According to the show cause notice, for the period from February 2005 to September, 2005, the appellant availed cenvat credit of Rs. 2,49,772/- on two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so examined packing AMP 031, 032 and Smart PTFE/Graphite Fibre in para 7 and was of the opinion that Cenvat credit is not admissible to the assessee under the class of capital goods. No where in para 7, he could demonstrate that he has considered pleadings of the assessee made in the reply to show cause notice. He examined the packing item in para 8. It was recorded that the appellant did not produce any document to prove that duty on these products was paid. He went through the definition of capital goods and came to the conclusion that disallowance is justified. So far as the graphite packing is concerned, appellant submitted in its reply to show cause notice that the use of said goods as part of the fermenter, Yeast Propagation Vessels, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt dismissing the appeal filed by Union of India in CC 8147/06 [2007 (214) E.L.T. A115 (S.C.)]. Hon ble High Court in para 3 4 of the judgment held as under :- 3. This Court concluded that goods once brought in factory for use in up-keep and maintenance of plant and machinery, which are directly used in manufacture of excisable articles, are the capital goods, and were certainly of subordinate necessity to such plant and machinery for the running of plant and is otherwise essential for its smooth and regular operations. Without proper up-keep and maintenance, the principal plant and machinery cannot function properly. Use of such capital goods is essential for smooth running of plant with greater efficiency. In other words, the goods in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of capital goods. 9. Heard both sides and perused the records. 10. The factual matrix that comes out from record is depicted here in before. It appears that a casual show cause notice was issued without depicting the cause against the proposed action. When the show cause notice looses its foundation to bring the appellant to the proper charge under the law, the proceeding shall be ill-founded. When the show cause notice did not assign the reason as to why the proposed proceeding has been initiated, a bald statement therein does not meet the end of justice. No doubt, the authorities have examined various items but they have travelled beyond the scope of show cause notice. If the noticee is not brought to charges, he should never face ..... X X X X Extracts X X X X X X X X Extracts X X X X
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