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TMI Blog2016 (9) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... tial procurement of capital goods, the appellant had not taken any Cenvat credit and such facts were brought to the notice of both the lower authorities by the appellant. Therefore, the burden lies with the Department to prove availment of Cenvat credit on the disputed goods has not been satisfactorily discharged, and thus, confirmation of duty demand on this ground also is not tenable. - Decided in favour of appellant - E/1545/2009-EX[DB] - Final Order No.52932/2016 - Dated:- 11-7-2016 - Mr. S.K. Mohanty, Member (Judicial) and Mr. R.K. Singh, Member (Technical) Mr. B.L. Narasimhan, Advocate - For Appellant Mr. G.R. Singh, DR - For Respondent ORDER The brief facts of the case are that the appellant is engaged in manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of payment of amount envisaged under Rule 3(5A) of the Cenvat Credit Rules, 2004. He further submits that the fact regarding non-availment of Cenvat credit on the disputed goods were known to the Department and that the authorities below were also aware of such facts through the submissions of the appellant. Thus, the submission of the appellant is that on both counts, the appellant has a good case on merits and the demand confirmed is liable to set aside. 3. Shri G.R. Singh, ld. Departmental Representative, on the other hand, reiterates the findings recorded in the impugned order and further submits that Rule 3(5A) ibid mandates payment of equal amount of duty leviable on transaction value, irrespective of the fact, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement with the findings of the lower authority that prescription of Chapter Note in the tariff will create the duty liability on the waste and scrap of metal goods arisen during the course of repair and maintenance of plant and machinery. With regard to applicability of Rule 3(5A) of Cenvat Credit Rules, 2004 to the facts of the present case, we find that on initial procurement of capital goods, the appellant had not taken any Cenvat credit and such facts were brought to the notice of both the lower authorities by the appellant. Therefore, the burden lies with the Department to prove availment of Cenvat credit on the disputed goods has not been satisfactorily discharged, and thus, confirmation of duty demand on this ground also is not ten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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