9911796707
TMI Blog2012 (4) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent. ORDER The appellant is seeking waiver of the condition of pre-deposit of duty of Rs. 5,62,887/- along with interest as also penalty of equal amount as a pre-condition to hearing of the appeal. 2. Briefly the relevant facts for disposal of stay application are that the appellant is a manufacturer of industrial gases. During the period 2005 to 2009, the appellant sold waste and sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant before jurisdictional Joint Commissioner that he had not availed modvat credit in respect of capital goods corresponding to waste and scrap, therefore, Rule 3(5A) of Cenvat Credit Rules, 2004 was not attracted as such he was not required to pay the excise duty on the scrap and waste sold during the period in question. It is also submitted that the aforesaid plea was rejected by the Joint Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(5A) of Cenvat Credit Rules, 2004 inserted under Notification No. 27/2005, dated 16-5-2005, if capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty leviable on transaction value. The above capital goods of MS scrap are mostly oxygen plant scrap. It was verbally informed to audit, that plant machines of oxygen plant are normally changed after 7 - 8 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy in operation and the appellant must have taken Modvat credit in respect of the capital investment relating to oxygen plant. Thus, it is submitted that the adjudicating authority has rightly confirmed the demand and the appellate authority has rightly rejected the appeal. 7. We have considered the rival contentions and perused the records. It is well settled that the onus of establishing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty. No doubt, while deciding the request for waiver, the Tribunal is also required to consider the interest of the Department, we however do not find this to be a case only of partial waiver pre-deposit of demand, particularly when learned A.R. has not been able to show any evidence indicating that the adjudicating authority or appellate authority had made any efforts whatsoever to verify t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
