TMI Blog2010 (11) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that they relate to very old period. Held that: the department has not adduced any evidence relating to the allegation of manufacture of excisable goods and therefore the entire goods should be treated as clearance of waste and scrap which has happened prior to 16-5-05 - Therefore there is no liability to duty or payment of amount as per Rule 3 (5A) of Cenvat Credit Rules. - E/261/2009-SM(BR) - 1340/2010-SM(BR)(PB) - Dated:- 23-11-2010 - Shri M. Veeraiyan, J. REPRESENTED BY : Shri V.R. Sethi, Advocate, for the Appellant. Shri I. Baig, DR, for the Respondent. [Order]. - This an appeal against the order of the Commissioner (Appeals) No. 243/ANS/PCK/2008 dated 31-10-2008. 2.Heard both sides. 3. The relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of evidence indicating that the scrap has arisen out of the capital goods procured prior to the introduction of Cenvat Credit Rules on the capital goods, the appellants are required to pay an amount equal to the excise duty in terms of sub-rule (5A) of Rule 3 of Cenvat Credit Rules. The original authority confirmed the demand of duty and imposed equal amount of penalty and the order of the original authority stands upheld by the Commissioner (Appeals). Duty and interest involved stands paid on 19-3-07 and it was submitted that the appellants have filed refund claim in December, 2007 and the same is pending decision. 4. Learned Advocate for the appellants submits that the burden to prove excisability is on the department. The items on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of manufacture of parts/accessories for replacing worn out parts in the sugar mills. Relying on the decision of High Court of Rajasthan in the case of Union of India v. Grasim Industries Ltd. reported in 2008 (229) E.L.T. 328, particularly paras 23, 24 and 25, he submits that when the scarp is generated in the fabrication of any part in connection with repair and maintenance, the same is dutiable. 6. I have carefully considered the submissions made from both sides and perused the records. The demand has been sustained on two grounds which are overlapping. The show cause notice alleges that the goods cleared by them are excisable. It also alleges that the goods cleared as waste and scrap has arisen out of capital goods on which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R sought for time to look for legal provisions relating to the recovery of the amount on the capital goods cleared as waste and scrap. Accordingly, the matter is passed over. 9.When the matter was resumed, after lunch break, learned SDR dew my attention to the proviso to sub-rule 5 of Rule 3 relating to the removal of the capital goods after the same was put to use. He fairly concedes that the same does not relate to the clearance of capital goods as waste and scrap. 10. In view of the above, I hold that the department has not adduced any evidence relating to the allegation of manufacture of excisable goods and therefore the entire goods should be treated as clearance of waste and scrap which has happened prior to 16-5-05 and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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