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TMI Blog2016 (3) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with this Rule, duty was paid by them on the basis of Annual Capacity of induction furnace. 2. The assessee was also manufacturing other goods (non-notified goods), in respect of which a demand for duty of Rs. 31,06,416/- was raised by the department on the ground that these goods were not covered under the Scheme and duty on such goods was, therefore, payable ad valorem. Further, a penalty of Rs. 15,00,000 was imposed on the assessee. 3. An appeal against this demand was filed by the assessee before the Honble Tribunal, where the Tribunal vide order dated December 2, 2013, confirmed the demand of duty of Rs. 31,06,416 and reduced the penalty to Rs. 3,00,000. The Tribunal, however, found that the Commissioner had not ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot only manufacturing notified goods but also other goods, the impugned CENVAT Credit of Rs. 2,80,907/- lying unutilized on the date it opted for Compounded Levy Scheme should have been allowed for utilization towards payment of duty on the non-notified goods. It also cited the CESTAT judgment in the case of Trishul Electrocastings P. Ltd. V. Comm. Of C. Ex. & Service Tax, Patna reported in 2013 (287) ELT 131 (Tri.-Kolkata) to the effect that non-notified goods incidentally manufactured were not liable to duty when the assessee was predominantly manufacturing notified goods and paying duty thereon under compounded levy scheme and therefore demand itself would not survive. 3. Ld. DR on the other hand states that the onus to show as to how m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quoted para and as is also conceded by the appellant during the hearing before CESTAT, no separate accounts were maintained with regard to the raw material meant for the notified goods and the non-notified goods. Obviously, therefore it is not possible for the appellant to establish as to how much of the impugned CENVAT Credit would pertain to the inputs which were used in or in relation to manufacture of non-notified goods. It is trite to say that the onus to show as to how much of the impugned CENVAT Credit pertained to inputs used in or in relation to the manufacture of non-notified goods and as the appellant is admittedly not in a position to discharge the said onus, the Commissioner rightly disallowed the impugned credit of Rs. 2,80,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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