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TMI Blog2018 (8) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants have availed CENVAT credit on the items removed as waste and scrap, the onus is on the department to prove that such credit was availed by the appellants. This burden has not at all been discharged by the department. On perusal of the documents, the items cleared by the appellants appear to be in guise rubber, washer, scrap of MS angles, plastic scrap, mixed metals scrap, CS pipe cut pieces, etc. When the appellants have given elaborate list of items cleared by them as alleged in the show-cause notice, it was incumbent upon the department to verify whether credit was availed or not. There are no reasons to disbelieve the claim of the appellants that they have not availed CENVAT credit. The appellants being public sector unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 dt. 31.12.2004 (AC-I) 01/2003 to 03/2003 3,43,837 3,36,006 4 51/2004 dt. 07.2.2005 (AC-I) 04/2003 to 06/2003 2,38,728 2,38,728 5 52/2004 (AC-I) dt.31.12.2004 07/2003 to 12/2003 4,869 4,741 6 C. No.V/27/3/100/2005 dt.7.12.2005 11/2004 to 07/2005 3,95,11 7 C. No.V/27/3/48/2006 Adjn. Dt.28.8.2006 (Capital Goods) 08/2005 to 03/2006 3,56,555 8 C.No.V/27/47/2006 Adjn. dt.28.8.2006 (Inputs) 08/2005 to 03/2006 8,827 9 C. No.V/27/3/2/2007 B.3 dt.27.2.2007 (Capital Goods) 04/2006 to 11/2006 3,37,501 10 C. No.V/27/3/3/2007 B.3 dt.6.2.2007 04/2006 to 11/2006 9,041 11 C. No.V/27/3/22/2007 dt.20.7.2007 12/2006 to 03/2007 32,867 12 C. No.V/27/3/21/2007 dt.20.7.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods nor any credit has been availed on the same. The learned Commissioner (A) did not also appreciate that the items sold were installed at refinery premises; hence, the question of reversing any CENVAT credit does not arise. The Commissioner (A) has accepted the lame excuses of the departmental officers that the magnitude of operations of the appellants is very huge and complicated and as such, the verification requires more time. The Commissioner (A) accepted their lame excuse and did not cause any factual verification before deciding the same. 3.1 The original adjudicating authority has set aside the show-cause notices following the ratio of CESTAT's decision rendered in their own case vide Final Order No.116/2007 dated 14.10.2007. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son Ltd. vs. Dy. Chief Controller of Imports & Exports: 2003 (154) ELT 370 (Bom.) • Radiant Silk Mills Pvt. Ltd. vs. CCE: 2010 (255) ELT 529 • Jawhari Lal Baid vs. CC: 1991 (52) ELT 278 (Tri.) 4.2 Lastly, the learned counsel relied upon the following case laws to say that the appellants are public sector undertaking and therefore, no mala fide intention to avail irregular and non- available credit can be attributed. • MRPL vs. CCE: 2015 (40) STR 1092 (Tri.-Bang.) • CCE vs. Chennai Petroleum Corpn. Ltd.: 2007 (211) ELT 193 (SC) • CCE vs. MRPl: 2008 (222) ELT 220 (Tri.-Bang.) • CCE, Mangalore vs. MRPL: 2017 (353) ELT 287 (Tri.-Bang.) 5. The departmental representative has reiterated the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fact which is not disputed by the department, it cannot be alleged that they have a mala fide intention in availing the CENVAT credit and have removed the capital goods or inputs in the guise of waste and scrap. No evidence whatsoever has been provided by the department, it is seen that the original adjudicating authority, following the ratio of this Tribunal's Final Order cited above, has discharged all the show-cause notices. This being the case, the learned Commissioner (A) cannot set aside the Order-in-Original without showing any concrete proof. Therefore, we hold that the department has made allegations on the basis of premises only and have not discharged the burden of proof. Therefore, the impugned order is not maintainable. 7. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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