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TMI Blog2017 (11) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... oods credit had been availed by the assessee and later waste and scrap arose out of the said capital goods. In the present case though the appellant has been vehemently arguing that they had received capital goods prior to 1994 and the worn machines/parts were removed as waste and scrap, the said facts had not been verified - matter is remanded to the original adjudicating authority to verify the evidences placed by the appellant before this forum and other evidences - appeal allowed by way of remand. - E/13269/2013-SM - A/13261/2017 - Dated:- 16-10-2017 - Dr. D. M. Misra, Member (Judicial) For Appellant: Sh. Rahul Gajera (Advocate) For Respondent: Mrs. NitinaNagori (A.R.) ORDER Per: Dr. D. M. Misra This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery, the worn out parts are replaced/repaired and the discarded parts are sold as waste and scrap. He has vehemently argued that the waste and scrap cleared from their factory were the result of worn out parts/machines procured in 1992-93 on which no CENVAT credit as capital goods had been availed by them. It is his contention that before applying the provisions of amended Rule 3 (5A) of CCR, 2004, the onus lies on the department to show that the waste and scrap, which were cleared arose out of capital goods on which CENVAT credit had been availed. In support of his contention, the Ld. Advocate referred to the decisions of this Tribunal in the case of Mangalam Cement Ltd. Vs. Commissioner of Central Excise, Jaipur - 2016 (338) ELT 145 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment, not generated out of those capital goods on which CENVAT credit had been availed. The Ld. AR further submitted that in view of the 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 peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the capital goods, which had become later scrap. In the present case though the appellant has been vehemently arguing that they had received capital goods prior to 1994 and the worn machines/parts were removed as waste and scrap, the said facts had not been verified. 8. In the result, the impugned order is set-aside and the matter is remanded to the original adjudicating authority to verify the evidences placed by the appellant before this forum and other evidences, if any, that would be submitted during the de novo proceeding to ascertain the fact whether CENVAT credit had been availed on the capital goods that became waste and scrap, on which duty has been confirmed. Appeal is allowed by way of remand to the adjudicating authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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