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2015 (11) TMI 777 - CESTAT NEW DELHIDisallowance of CENVAT Credit - denial of credit on the ground that goods removed / cleared free of cost - the value of inputs received by them was subsequently adjusted/reduced by way of issuance of debit notes - Held that:- The assertion in the show cause notice and the conclusion in the orders passed by the authorities below do not refer to any probative material or evidence to support Revenue s assertion that the appellant availed cenvat credit on those inputs which resulted in the manufacture of final goods, some of which were returned to the appellant and are covered by the debit notes. Thus, Revenue failed to establish its assertion that the appellant had availed cenvat credit, an assertion which is clearly and categorically denied by the appellant and on which aspect no finding whatsoever stands recorded either by the primary authority or by the lower appellate authority. Thus the enquiry on the second aspect as to any correlation between the debit notes and invoices under which the goods were supplied to third parties by the appellant is an enquiry which is non sequitor. - burden of establishing availment of cenvat credit is on Revenue since it is Revenue s assertion that appellant had availed cenvat credit of those inputs which were used in the manufacture of final goods some of which were returned and on which debit notes were issued. Since Revenue failed to establish availment of cenvat credit by bringing on record evidence support to claim, reference to RG-23 register or any other probative material, it must be held to have been failed to shift the onus to the appellant to prove that it had not availed cenvat credit. - Decided in favour of assessee.
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