2018 (11) TMI 1810

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....les, 2004 was inserted with effect from 16/05/2005. The said sub rule reads as follows:- "(5A) If the capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty leviable on transaction value." 2. During the course of audit of the Books of Accounts of the appellant, it was noticed that the appellant had cleared waste and scrap of capital goods, during the period 16/05/2005 to 31/03/2007. It was further noticed that they did not pay Central Excise duty on the transaction value of the goods cleared as required under Rule 3 (5A) ibid. Accordingly Show Cause Notice dt. 05/03/2008 was issued proposing to demand Central Excise Duty. A separate Show Cause Notice dt. 05/03/2009 was issued for dem....

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.... respect of such capital goods which are still recognizable as capital goods. He submitted that the items which are cleared cannot be reused as capital goods or even as excisable goods. Consequently, there is no justification for demand of duty. (iii) He also submitted that it is for the Revenue to prove that the appellant had availed Cenvat Credit on the items on which demand has been made. In this connection, he relied on the decision of the Hon'ble Supreme Court in the case of Commissioner of Customs vs Auto Ignition Ltd. reported as 2008 (226) ELT 14 (SC). (iv) He submitted that the Revenue has failed to discharge the burden of proof in this regard. He also relied on the decision of the Ahemdabad Bench of the Tribunal ....