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2018 (7) TMI 1773 - CESTAT ALLAHABADClearance of scrap of capital goods without payment of duty - appellant availed Cenvat credit of duty paid on such capital goods - Section 11A of the Central Excise Act read with Rule 3(5) of Cenvat Credit Rules, 2004 - scope of SCN - onus of proof - Held that:- The Revenue neither in the show cause notice nor in the impugned order has anywhere referred to any entries in the RG-23 Part-II Register to substantiate their allegation that the assessee had availed the Cenvat credit - It is well established law that one who makes the allegation is required to substantiate the same with proof - Negative onus to show that the appellant had not availed the credit, cannot be placed upon the assessee. Time limitation - Held that:- The demand is barred by limitation having been raised beyond the normal period as clearance of the scrap were on the basis of invoice and there was not any clandestine activity on the part of the assessee, in which case, longer period cannot be invoked. Appeal allowed on merits as well as on limitation.
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