9911796707
TMI Blog2012 (6) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... s. During the period from 16.06.2005 to March, 2006, they sold some used capital goods as scrap without payment of duty. While during this period, in terms of the provisions of Rule 3(5A) of the Cenvat Credit Rules, 2004, when the modvat credit availed capital goods are sold as scrap, an amount equal to the duty on their sale price is required to be paid. The department was of the view that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide impugned order-in-appeal dated 19.11.2008 set aside the Asstt. Commissioner's order on the ground that the burden of proving that the capital goods in question, sold as scrap were Cenvat credit availed is on the department and since the Asstt. Commissioner's findings on this point is without any basis, the demand is not sustainable. The Commissioner (Appeals) in this regard relied upon the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal in revenue's appeal and emphasised that it is the respondent who were maintaining the records regarding availment of cenvat credit in respect of capital goods and that when the respondent claims that the goods, in question were not cenvat credit availed, it is they who should produce the evidence in this regard, that since the respondent have not produced any evidence in support of their cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein it was held that in absence of any records produced by the appellant, their claim that waste and scrap cleared by them was of stock prior to 1986 cannot be accepted. He, therefore, pleaded that in view of this, the impugned order is not correct. 4. None present on behalf of the respondent. 5. I have carefully considered the submissions of the ld. DR. There is no dispute about the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efer to any such records. Since whether or not the capital goods, in question, were cenvat credit availed is verifiable fact, the impugned order is set aside and the matter is remanded back to the original adjudicating authority for de novo adjudication after verification as to whether in respect of the capital goods, in question, cenvat credit had been availed or not after hearing the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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