2018 (2) TMI 466

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..... is that the appellant have removed capital goods after use for more than 10 years.  The case of the department is that since the appellant have cleared capital goods as a scrap,  they are liable to pay duty in terms of Rule 3(5A) of Cenvat Credit Rules, 2004. Accordingly the demand was confirmed and the same was upheld by the Commissioner (Appeals)therefore the appellant are before me. .....

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..... since the appellant themselves have not taken the credit, Rule 3(5A) is not applicable on them and as regard the assumption  of the Ld. Commissioner (Appeals) that the earlier owner might have taken the cenvat credit, the assumption drawn by the Commissioner (Appeals)  has no evidence on record. 3. Shri Sanjay Hasija, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterat .....

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..... . Commissioner (Appeals)  demanding duty on the ground that the appellant have not produced any documentary evidence of non-availment of cenvat credit on capital goods when they were initially purchased by the earlier owner.  I find that these findings not flowing from the allegation made in the show cause notice, therefore it is beyond the scope of show cause notice it cannot be sustain .....

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