TMI Blog2012 (6) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... original adjudicating authority for de novo adjudication. revenue's appeal is allowed by way of remand. - 105 OF 2009-SM(BR) - 466 OF 2011-SM (BR) - Dated:- 3-8-2011 - RAKESH KUMAR, J. ORDER 1. The respondents are manufacturers of V.P. Sugar and Molasses. 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 the capital goods, in question sold as scrap, were Modvat credit availed goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the respondent. I find that in the earlier occasion also, when this matter was fixed for hearing, nobody appeared on behalf of the respondent. In view of this, in accordance with Rule 21 of CESTAT (Procedure) Rules, so far as the respondent are concerned, the matter is decided ex parte. 3. Heard Shri S.K. Bhaskar, ld. Departmental Representative, assailed the impugned order by reiterating the grounds of appeal 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 sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it had been availed. The respondents in course of proceedings before the Asst. Commissioner had claimed that the capital goods were not cenvat credit availed goods but the Asstt. Commissioner did not accept this plea and held that the goods were cenvat credit availed. On going through the records, I find that this finding is without any reference to the records. If the cenvat credit had been availed in respect of the capital goods in question, the records in respect of the same would be available while the order-in-original passed by the Asstt. Commissioner does not refer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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