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TMI Blog2013 (10) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods -Bag Filter, Conveyer feeding material and Gantry EOT cranes nor the fabrication of the capital goods has been reflected in ER-1 returns - The extract of RG-1 register placed on record shows fabrication of gantry, the bag filter etc. in December 2011 and from this, it cannot be said that these items of capital goods had been fabricated by using the steel items received during July 2010 to December 2010 - prima facie case is against the assessee - Partial stay granted. - Appeal No. 57700 of 2013 (SM) - Stay Order No. 59164/2013 - Dated:- 6-9-2013 - Mr. Rakesh Kumar, J. For the Appellant : Shri Abhas Mishra, Advocate For the Respondents : Shri P.K. Sharma, Authorized Representative (DR) ORDER Per. Rakesh Kumar :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, he must maintain proper account of their receipt and use and the burden of proof, that the Cenvat credit in respect of an item has been correctly is on the assessee. Against this order of the Commissioner (Appeals), this appeal has been filed alongwith stay application. 2. Heard both the sides in respect of stay application. 3. Shri Abhas Mishra, Advocate, the learned Counsel for the appellant, pleaded that the steel items, in question, have been used for fabrication of Bag filter, Conveyer feeding material and Gantry which are covered by Chapter 84 and hence are capital goods and, therefore, these items would be eligible for Cenvat credit as input in terms of Rule 2 (k) of Cenvat Credit Rules, that the appellant had maintained inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns declaring the fabrication of capital goods have also not been produced and that in view of this, prima facie, there is no infirmity in the impugned order and hence this is not the case for wavier from the requirement of pre-deposit. 5. I have carefully considered the submissions from both the sides and perused the records. 6. The steel items, in question, as such, are not covered by the definition of capital goods as given in Rule 2 (a) of Cenvat Credit Rules. These items would be eligible for Cenvat credit as input in terms of Rule 2 (k) only if the same have been used in fabrication of capital goods for use in the factory. Thus for availment of Cenvat credit in respect of these items, the use of these items is important. In this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case, none of this has been done which would shift the burden of proof to the Jurisdictional Central Excise officers, as in this case, the receipt of the goods was during July 2010 to December 2010 and prima facie, neither there is any communication to the Central Excise authorities regarding their use in fabrication of the capital goods -Bag Filter, Conveyer feeding material and Gantry EOT cranes nor the fabrication of the capital goods has been reflected in ER-1 returns. The extract of RG-1 register placed on record shows fabrication of gantry, the bag filter etc. in December 2011 and from this, it cannot be said that these items of capital goods had been fabricated by using the steel items received during July 2010 to December 2010. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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