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2013 (9) TMI 536 - AT - Central ExciseCENVAT credit - Burden to Prove - Angles, Channels, Plates, Sections, Beams, Flats, etc. - Revenue was of the view that the credit was wrongly taken as there was no evidence that the items had been used for manufacture of capital goods for use in the factory - Held that:- Held that:- Since the appellant had failed to discharge their onus the order was correct - By reading of the Explanation it was apparent that if the inputs have gone into manufacture of capital goods, then only they were eligible for Cenvat credit and such capital goods must be put to actual manufacture of final product - it was only within their knowledge as to how and in what manner these items were put in use - In the adjudication proceedings the appellant despite of the fact that they were given opportunity of hearing did not lead any evidence to indicate as to which items of structural steel plates, and in what quantity were used for fabrication of machinery - The Commissioner had no option but to hold that the appellant failed to discharge onus regarding use of items in question as inputs for manufacture of capital goods - Not only this admittedly the appellants in the ER-1 returns filed by them, did not declare the use of these items in manufacture of capital goods. The M.S. Angles, Channels, Plates, Sections, etc. were claimed to have been used for fabrication of various items of machinery for use in the factory, no evidence in support of this claim has been produced in spite of ample opportunities having been given to the appellants - neither the manufacture of any capital goods had been declared in ER-1 Returns nor any specific intimation had been given regarding use of the structural steel items in manufacture of capital goods - when the appellants had taken Cenvat credit in respect of items like M.S. Angles, Channels, Plates, Section etc. falling under Chapter 72 & 73 of Central Excise Tariff Act which were not covered under the definition of capital goods, Cenvat credit in respect of these items would be admissible as input only if there was evidence on record showing their use in the manufacture of capital goods for use in the factory the burden of producing evidence in this regard was on the appellant but the appellants had not discharged the burden of proof and that the Commissioner had rightly disallowed the Cenvat credit in respect of these items and there was no infirmity in the order - Decided against Assesses.
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