TMI Blog2018 (5) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... - the show cause notice is presumptive and hence not maintainable. It appears that the plant was definitely more than 10 years old which have been removed. Thus the depreciated value also becomes nil in course of time calling for no reversal of Cenvat credit (as per amended rules). Appeal allowed - decided in favor of appellant. - APPEAL No. E/2747/2011-EX[SM] - FINAL ORDER NO. – 70918/2018 - Dated:- 20-11-2017 - Hon ble Mr. Anil Choudhary, Member (Judicial) Ms. Natasha Sarkar (Advocate) for Appellant Shri Sandeep Kumar Singh, (Dy. Commr.) AR for Respondent ORDER Per: Anil Choudhary The issue in the present appeal is whether the appellant is required to pay duty by way of reversal under Rule 3(5) or 3(5)(A) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of ₹ 5,62,887/- along with interest and further penalty was proposed, invoking the extended period of limitation. The appellant filed a representation dated 11/08/2010 to the Joint Commissioner, pointing out that in the SCN it is alleged that they have not paid duty on sale value of such scrap generated from capital goods on which Cenvat credit have been availed. But no details of taking of such credit have been given in the SCN. Therefore, they prayed for supply of such relevant details. Further, the appellant contested the SCN by filing reply along with their affidavit of one Mr. A. K. Chaudhary, Assistant Accounts Manager of the appellant, being affidavit dated 20/10/2010 wherein it was categorically stated the, appellant have v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumptive and not maintainable. The contentions of the appellant that the scrap of old plant sold was such plant on which Cenvat credit had not been taken. It is also observed that they were running the industry since 1973 and as such they had plant and machinery of the earlier period during which no Cenvat credit was available. The Learned Counsel also relies on a Coordinate Bench ruling of this Tribunal in the case of Karnal Cooperative Sugar Mills Ltd. Vs CCE 2011 (265) E.L.T. 236 (Tri.-Del.) wherein the SCN alleged that goods cleared are excisable as the waste and scrap cleared and arisen of capital goods on which credit had been taken. This Tribunal held that the burden of proof is on the Department to adduce evidence in respect of alle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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