9911796707
TMI Blog2013 (12) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... information to the Revenue, cannot be held to be a circumstances reflecting upon the malafide of the assessee - the view that demand is barred by limitation – Decided in favour of Assessee. - Appeal No. 2822 of 2005-EX[DB] - FO 56180/2013-Ex(Br) - Dated:- 12-4-2013 - Ms. Archana Wadhwa and Mr. Rakesh Kumar, JJ. For the Appellant: Shri Hemant Bajaj, Advocate For the Respondent: Shri N. Pathak, DR JUDGEMENT Per Archana Wadhwa (for the Bench): The dispute in the present appeal relates to the payment of duty on waste and scrap of inputs and capital goods. As per the Revenue, the appellant had availed the credit in respect of said inputs and capital goods and as such, in terms of provisions of Modvat Rules, they were r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either the adjudicating authority nor the appellate authority has gone into the contention of the appellant that the scrap was generated out of the capital goods on which they had not taken any credit. Revenues contention for remanding the matter was also rejected by observing that the dispute is over 13 years old and there is likelihood that the evidence being not available is there. He also assails the impugned demand on the point of limitation by submitting that the scrap was sold in 1997-1999 whereas the show cause notice was issued on 24.4.2002. 4. Countering the argument learned DR appearing for the Revenue submits that the appellant never took a plea of non-availment of Cenvat credit before the adjudicating authority. As such, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrap has arisen from the Cenvat credit is upon the revenue. No presumption can be made in respect of said issue. Reading of the show cause notice reveals that the Revenue has not referred to any evidence reflecting upon the fact of availment of credit. This was absolutely necessary, especially in the light of statement of Shri R.P. Kothiyal. Similarly, neither the adjudication order nor the order in appeal refers to any evidence or entries in RG 23 A Part I or Part II indicating availment of credit. Inasmuch as the Revenue has miserably failed to discharge the onus placed upon it, we do not find any merits in the Revenues contention. 7. In any case and in any view of the matter, we note that the demand stand raised by way of Show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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