9911796707
TMI Blog2017 (3) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... During the course of audit, on scrutiny of their records, it was noticed that the appellant during the period April 2003 to March 2007 cleared about 1930 MT of Iron waste & scrap valued at Rs. 1,63,02,565/- without payment of duty of Rs. 26,53,052/-. Alleging that the said Iron and scrap is generated out of the capital goods installed in the factory, show cause cum demand notice was issued for recovery of the duty along with interest and penalty. On adjudication, the demand was confirmed with interest and penalty of equal amount. On appeal, the Ld. Commissioner (Appeals) upheld the Order but reduced the quantum of demand by restricting it to the sale of scrap from 16.05.2005. Aggrieved by the said order of the Ld. Commissioner (Appeals), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise, Jaipur 2016 (338) ELT 145 (Tri.-Del.), Karnal Co-Operative Sugar Mills Ltd vs. Commissioner of Central Excise, Panchkula 2011 (265) ELT 236 (Tri.-Del.). 4. Further, the Ld. Advocate in support of his argument that they have not availed CENVAT credit on items likes M. S. Angles, Channels, Beams, Nut Bolts etc, used in repair and maintenance of the plant and machinery, referred to the detailed statements/charts listing out the items procured during the period 1988-1989 to 2006 to 2007 (annexed as Exhibit VIII Pages 116 to 165 of appeal paper book) and sample purchase invoices submitted during the course of proceeding before this Tribunal. He has also contended that no fact was ever suppressed from the knowledge of the department, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgement of Hon'ble Gujarat High Court in the case of GNFC Ltd vs. Union of India 2007 (214) ELT 18 (Guj.) waste and scrap of capital goods under Rule 57-S(2)(c) erstwhile Central Excise Rules,1944, held to be dutiable. The Ld. AR further contended that since the appellant did not bring out any evidence that the waste and scrap not generated out of capital goods on which CENVAT credit had been availed earlier, therefore, merely reflecting the figures of clearance of the same in their balance sheet cannot support their claim that the demand is barred by limitation. 6. Heard both sides and perused the records. The short question for determination is: whether clearance of Iron waste and scrap after 16.06.2005 alleged to be generated ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence at the relevant time, in my opinion, it is relevant to ascertain first whether CENVAT Credit had been availed on the capital goods, which had become later scrap. In the present case though the appellant has been vehemently arguing that they had received the 3333 MTs of M.S. Angles, Channels, Beams, Nut Bolts etc, during the period 1986-87 to 2006-07, and used in the maintenance of the plant and machinery for replacement of worn out parts, and the worn parts were removed as waste and scrap of 1930MTs, the said facts had not been verified. No doubt the onus lies on the department to establish that the waste and scrap did arise out of the capital goods on which credit availed, but, in the present case, the evidences adduced by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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