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2018 (11) TMI 826 - AT - Central ExciseCENVAT Credit - capital goods - appellant availed 100% credit in first year - revenue neutrality - Held that:- When the situation is revenue-neutral, then no malafide intention could be discerned. In addition, undoubtedly, it is a case where extended period has been invoked by the Revenue and therefore, the burden of proving malafide/suppression is on the Revenue, since, it is the cardinal principle of law that the burden of proof lies on the shoulder of the person alleging it. Moreover, a mechanical reproduction of the language used in the statute would not per se justify the malafide intentions nor the invocation of extended period of limitation - Revenue has grossly erred in invoking extended period of limitation even after being satisfied that it was the case of revenue neutrality and for which reason alone, the impugned order is set aside. Even on merits, admittedly, the goods are covered under CTH 82, 84, 85 and 90 and just for this reason alone the Revenue has sought it to be classified as ‘capital goods’. The arguments of the Ld. Consultant that the above goods were never capitalized in the appellant’s books; that they were consumed during the process of the manufacturing activity of the appellant which only proves that they were not having any enduring benefits, etc., has nowhere been attempted to be dislodged - credit remains allowed. Appeal allowed - decided in favor of appellant.
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