TMI Blog2018 (8) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... ch credit was availed by the appellants. This burden has not at all been discharged by the department. On perusal of the documents, the items cleared by the appellants appear to be in guise rubber, washer, scrap of MS angles, plastic scrap, mixed metals scrap, CS pipe cut pieces, etc. When the appellants have given elaborate list of items cleared by them as alleged in the show-cause notice, it was incumbent upon the department to verify whether credit was availed or not. There are no reasons to disbelieve the claim of the appellants that they have not availed CENVAT credit. The appellants being public sector undertaking, a fact which is not disputed by the department, it cannot be alleged that they have a mala fide intention in availi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12/2002 11,06,197 10,97,199 2 20/2005 Hqrs. Adjn. dt. 28.3.2005 01/2004 to 10/2004 6,37,020 6,37,020 3 50/2004 dt. 31.12.2004 (AC-I) 01/2003 to 03/2003 3,43,837 3,36,006 4 51/2004 dt. 07.2.2005 (AC-I) 04/2003 to 06/2003 2,38,728 2,38,728 5 52/2004 (AC-I) dt.31.12.2004 07/2003 to 12/2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 22.11.205. The Commissioner (A) vide order No.155/2009 dated 21.4.2009 has allowed the departmental appeal and held that the appellants are required to pay duty on the transaction value of capital goods cleared as waste and scrap in respect of the following show-cause notices. Sl. No. Show-cause notice and date Period Covered Duty demanded 1 C. No.V/27/3/48/2006 Adjn. dt.28.8.2006 08/2005 to 03/2006 3,56,555 2 C.No.V/27/3/2/2007 B.3 dt.27.2.2007 04/2006 to 11/2006 3,37,501 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2007. The Commissioner (A) has held that the CESTAT s decision was for a prior period and as such, cannot be made applicable to a later period. 4. The learned counsel for the appellants has contended that the onus to prove that the assessee has availed MODVAT credit is on the Revenue whereas the learned Commissioner (A) has given a finding that the appellants failed to show that they have not availed CENVAT credit. They relied upon the following case laws: CCE vs. Auto Ignition Ltd.: 2008 (228) ELT 14 (SC) CCE vs. Khalsa Charan Singh Sons: 2010 (255) ELT 379 (P H) UOI vs. Hindustan Zinc ltd.: 2008 (225) ELT 50 (Raj.) UOI vs. Garware Nylons Ltd.: 1996 (87) ELT 12 (SC) C.J. Shah Co. vs. CC (EP): 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Heard both sides and perused the records. The department s contentions was that the appellants have not reversed the credit availed on the inputs/capital goods removed by them as such or after use. However, we find that the department has not adduced any evidence to show that the credit has been availed by the appellants. Having alleged that the appellants have availed CENVAT credit on the items removed as waste and scrap, the onus is on the department to prove that such credit was availed by the appellants. This burden has not at all been discharged by the department. We fail to understand the reasoning given by the learned Commissioner (A) that the appellants have failed to give evidence to the effect that they have not availed CEN ..... X X X X Extracts X X X X X X X X Extracts X X X X
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