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2010 (8) TMI 561 - CESTAT, NEW DELHIDemand - CENVAT credit - Scrap is of capital goods - The appellants took credit on the capital goods first time on 18-8-2001 - Whatever scrap cleared by them during the period prior to 1-4-2000 were clearly arising out of capital goods on which appellants had not taken any credit - The appellants have produced the original invoices issued by client during the relevant period in their favour and the original authority after perusing the same, held that the assessee failed to produce original records co-relating the scrap with the goods as per the invoices - The issue that was required to be considered was whether the waste and scrap have arisen out of capital, goods on which credit has been taken by the appellants - The burden is on the department to prove that the credit on the said capital goods have been taken before invoking Rule 57-S. The evidence adduced by the appellants are clearly pointing to their not availing any credit on the capital goods for the period prior to 31-3-2010 - The submission by the consultant that during the disputed period defacement of invoices on which credit was taken was mandatory and that invoices produced by them before the original authority were invoices which were not defaced and the same is an evidence to show that no credit was taken is also valid - The order of the Commissioner (Appeals) is set aside and appeal is allowed
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