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TMI Blog2013 (12) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... (for the Bench): The dispute in the present appeal relates to the payment of duty on waste and scrap of inputs and capital goods. As per the Revenue, the appellant had availed the credit in respect of said inputs and capital goods and as such, in terms of provisions of Modvat Rules, they were required to discharge the duty on the sale of waste and scrap arising out of said modvatable goods. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the disputed input and capital goods is on the Revenue who has failed to discharge the same. For the same proposition, he has relied upon the Hon'ble Supreme Court decision in the case of Commissioner of Customs vs. Auto Ignition Ltd. [2008 (226) ELT 14 (SC)] wherein it was observed that the onus of proof of availment of credit by the assessee is on the Revenue and in the absence of any such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the Revenue submits that the appellant never took a plea of non-availment of Cenvat credit before the adjudicating authority. As such, no fault can be found with the Revenue in not examining the records. He prays that the matter be remanded with directions to verify the records maintained by the appellant As regards limitation, he submits that the appellant never intimated the Revenue about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority but we find that Shri R.P. Kothiyal in his statement, which was admittedly recorded before the issuance of show cause notice, has very clearly deposed that the waste and scrap has arisen out of non-modvatable inputs and capital goods. In terms of law declared by the Hon'ble Supreme Court in the case of Auto Ignition Ltd. and by the Tribunal in the case of Recron Synthetics Ltd. the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 24.4.02 for the period 1997-1999 by invoking the longer period of limitation. Mere non-information to the Revenue, by itself cannot be held to be a circumstances reflecting upon the malafide of the assessee. As per the settled law suppression or mis-statement, if any, has to be with an intent to evade payment of duty. There is no circumstances or evidence on record reflecting upon the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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