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2019 (10) TMI 1037 - AT - Central ExciseCENVAT credit - inputs used in the manufacture of exempt goods, Animal Driven Vehicle Tyres (ADV tyres) - Allegation based on assumptions and presumptions - HELD THAT:- In the premises the Cost Audit report submitted by Birla Tyres in terms of the direction of the predecessor Commissioner in the present proceedings, as well as the certificate of the Cost Auditor, submitted as per his direction in the proceedings are to be relied upon. They establish that the subject materials were never used as input materials, either directly or indirectly, in or in relation to the manufacture of ADV tyres. The charts submitted by Birla Tyres, the contents whereof are with reference to the documents on record and the correctness of which has not been disputed on behalf of the Revenue, also evidences this. The findings in the impugned order are based on, besides uncorroborated statements, derived figure of numbers, assumptions, presumptions and on unintelligible, theoretical calculations. It is a settled principle of law that in the absence of sufficient, positive and tangible evidence on record, findings based on inferences as in the impugned order are unsustainable - however, the burden of proof that assessee had availed modvat/cenvat credit is that on the Revenue. The impugned order, to the extent it confirms the duty demand of ₹ 78,57,625/-, interest thereon and the penalty imposed upon Birla Tyres, is set aside and the dropping of the demand of ₹ 24,53,668/- is confirmed, with consequential relief to Birla Tyres - appeal allowed - decided in favor of appellant.
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