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2018 (8) TMI 688 - AT - Central ExciseMODVAT/CENVAT credit - Department contended that they have cleared the waste and scrap of inputs and capital goods and rejected/damaged inputs on which they had availed CENVAT credit and have not reversed the credit availed on such inputs while clearing such wastes and scraps from the factory in contravention of CENVAT Credit Rules, 2004 - Held that:- The Department has not adduced any evidence to show that the credit has been availed by the appellants. Having alleged that the appellants have availed CENVAT credit on the items removed as waste and scrap, the onus is on the department to prove that such credit was availed by the appellants. This burden has not at all been discharged by the department. On perusal of the documents, the items cleared by the appellants appear to be in guise rubber, washer, scrap of MS angles, plastic scrap, mixed metals scrap, CS pipe cut pieces, etc. When the appellants have given elaborate list of items cleared by them as alleged in the show-cause notice, it was incumbent upon the department to verify whether credit was availed or not. There are no reasons to disbelieve the claim of the appellants that they have not availed CENVAT credit. The appellants being public sector undertaking, a fact which is not disputed by the department, it cannot be alleged that they have a mala fide intention in availing the CENVAT credit and have removed the capital goods or inputs in the guise of waste and scrap. Appeal allowed - decided in favor of appellant.
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