2018 (8) TMI 688

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....pital goods. The appellants have removed/cleared certain waste and scrap from the factory. The department contended that they have cleared the waste and scrap of inputs and capital goods and rejected/damaged inputs on which they had availed CENVAT credit and have not reversed the credit availed on such inputs while clearing such wastes and scraps from the factory in contravention of CENVAT Credit Rules, 2004. A total of 13 show- cause notices have been issued to the appellants covering period 2002-07 as detailed below: Sl. No. OIO No. & Date Period Involved Amount Demanded Amount Confirmed   1 54/2004 dt. 28.10.2004 Hqrs. Adjn. 07/2002....

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....                 2. While the show-cause notices 1-5 were confirmed vide Order-in-Original No.50, 51, 52/2004, on an appeal made by the appellants, the Commissioner (A) had set aside the same vide Order-in-Appeal No.300-301/2005 dated 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.....

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....ices following the ratio of CESTAT's decision rendered in their own case vide Final Order No.116/2007 dated 14.10.2007. 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.....

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.... (222) ELT 220 (Tri.-Bang.) * CCE, Mangalore vs. MRPL: 2017 (353) ELT 287 (Tri.-Bang.) 5. The departmental representative has reiterated the findings of the Order-in-Appeal. 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 b....