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2016 (4) TMI 541 - AT - Central ExciseAdmissibility of Cenvat credit - Goods not received in the factory - Revenue contended that it is not the responsibility of the Revenue to establish that the goods were not received but the responsibility of petitioner - Held that:- it is clear from the text of the Rule that the onus of establishing that the goods have been received is on the person who has taken the credit. The show-cause notice invoked the said rule and produced certain evidence in the shape of statements and documents. Some statements have been retracted, however, there has been no effort on the part of respondents to fulfill the requirement of Rule 9(5) by proving the receipt of goods by them in terms of Rule 9(5) of the Cenvat Credit Rules. The Commissioner (Appeals) has wrongly placed the onus on the Revenue to establish that the goods have not been received. Therefore, the impugned order to that extent is set aside and for establishing the receipt of goods in terms of Rule 9(5) of the Cenvat Credit Rules , the matter is remanded back. Imposition of penalty - Rule 15/15(2) of the CCR, 2004 read with Section 11AC of the Central Excise Act, 1944 - Held that:- by following the decision of Hon'ble Bombay High Court in the case of Ashok Kumar H Fulwadhya [2010 (1) TMI 229 - BOMBAY HIGH COURT], the penalties imposed under Rule 15/15(2) of CCR on other respondents are set aside. - Appeal disposed of
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