TMI Blog2019 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... taken at that time, as appellant has not taken cenvat credit on the capital goods, therefore, provision of Rule 3(5A) of Cenvat credit Rules, 2004 are not applicable to the facts of this case. The demand under Rule 3(5A) Cenvat credit Rules, 2004 is not sustainable against the appellant - appeal allowed - decided in favor of appellant. - APPEAL NO. E/61482/2018 - FINAL ORDER NO. 60224/2019 - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to reverse the Cenvat credit availed on the said capital goods, the demand was confirmed. Against the said order, the appellant approached to this Tribunal and this Tribunal remanded matter back to the adjudicating authority for de nova adjudication keeping all issues open. In remand proceedings, the appellant did not receive the hearing notices, therefore, the adjudicating authority pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable against the appellant in the light of the decision of this Tribunal in the case of Shree Khedut Sahakari Khand Udyog Mandli Ltd Vs. CCE ST, Surat I 2017 (11) TMI 1000 CESTAT Ahmedabad. 4. He further submits that onus is on the Revnue to prove that Cenvat credit was availed by the appellant as it is cleared from the facts of the case that they have not availed the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In these circumstances, as facts are not in dispute, the demand under Rule 3(5A) Cenvat credit Rules, 2004 is not sustainable against the appellant. Accordingly, the same is set aside, therefore, no penalty is impossible on the appellant 7. In terms of above, the impugned order is set aside and the appeal is allowed with consequential relief, if any. (Order dictated and pronounced in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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