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TMI Blog2010 (11) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003-04 was examined and objection was raised stating that the appellants have cleared the scrap of iron and steel and the scrap of brass falling under Chapter 7204.90 and 7404.90 respectively and the duty of Rs. 2,25,082/- was payable which was communicated to the appellants by a letter dated 27-4-05 issued by the Superintendent. The enclosure to the said letter gives the description of the goods as M.S. Pipes scrap, M.S. Heavy Scrap, used brass tube scrap, used nickel scrap, brass tube scrap, used boiler tube etc. The appellants gave reply dated 19-5-05 claiming that the said scrap has not arisen out of manufacturing of excisable goods. The Superintendent in his further letter dated 30-8-05 sought for clarification as to the goods from wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared by them as waste and scrap during 2003-04 are arising out of the manufacture of final product which are excisable. 5. Learned Advocate alternatively submits that the scarp and waste cleared by them are arising out of capital goods installed prior to 1989-90. Even though they were not able to produce the documents relating to procurement and installation of the capital goods out of which these waste and scrap has arisen, the clearances having been made during 2003-04, the question of demanding any amount in terms of Rule 3(5A) of Cenvat Credit Rules does not arise. In support of this proposition, he relies on the decision of the Tribunal in the case of Triveni Engineering & Industries Ltd. v. CCE, Meerut-II reported in 2008 (84 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng manufacture of excisable goods, the burden of proof is on the department to adduce the evidence. In the absence of such evidence having been relied upon, the issue requires to be considered in the light of the second allegation that the goods have been cleared as waste and scrap have arisen out of capital goods on which the appellants have taken the credit. Admittedly the appellants were not able to produce documents on the ground that they relate to very old period. However, the submissions of the learned Advocate that prior to the amendment dated 16-5-05 to Rule 3 of Cenvat Credit Rules introducing sub-rule 5A no amount is payable on waste and scrap arising out of capital goods even if the credit had been taken requires to be accepted. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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