TMI Blog2012 (4) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... bject matter of this appeal correspond to investment in capital goods i.e. plant and machinery relating to which modvat credit had been taken. In the absence of any such evidence, we find that the appellant has been able to make out a strong prima facie case for waiver of the condition of pre-deposit of the duty, interest and penalty. - Stay granted. - E/2747/2011 - Stay Order No. 603/2012-EX(BR)(PB) - Dated:- 3-4-2012 - Ajit Bharihoke and Shri Rakesh Kumar, JJ. Shri Hemant Bajaj, Advocate, for the Appellant. Shri N. Pathak, AR, for the Respondent. ORDER The appellant is seeking waiver of the condition of pre-deposit of duty of Rs. 5,62,887/- along with interest as also penalty of equal amount as a pre-condition to hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Modvat credit in respect of capital goods/machinery corresponding to the waste and scrap. Learned Counsel submits that while confirming the Adjudicating Authority did not consider the fact that there was no evidence on record to support the demand. Thus, it is concluded that the order in appeal is not sustainable in law and the appellant has a strong prima facie case for waiver of the condition of pre-deposit. 5. Shri N. Pathak, learned A.R. for Revenue has argued in support of the impugned order and referred to the draft copy of the audit report wherein the auditor has inter alia observed thus :- The assessee invariably takes credit of duty paid on capital goods. As per the Rule 3(5A) of Cenvat Credit Rules, 2004 inserted under Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled that the onus of establishing that the assessee is liable to pay excise duty is on the Department. Perusal of the adjudication order would show that it is not based upon a concrete evidence but on the assumption that the appellant must have taken Modvat credit in respect of the capital goods corresponding to the waste and scrap. There is nothing on record to indicate if the modvat credit account of the appellant was scrutinized before coming to the conclusion that the waste and scrap which are the subject matter of this appeal correspond to investment in capital goods i.e. plant and machinery relating to which modvat credit had been taken. In the absence of any such evidence, we find that the appellant has been able to make out a str ..... X X X X Extracts X X X X X X X X Extracts X X X X
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