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2018 (8) TMI 609 - AT - Central ExciseCENVAT Credit - Whether a demand can be raised seeking reversal of CENVAT credit on the ground that the inputs could not have been used in manufacture of final products because the losses were much higher as per the standard industry norms? - Held that:- The suspicions by themselves cannot form a basis for demand unless investigations can establish as to what had happened in that case - the demand in the show cause notice is based on the mathematical calculations based on the average losses as per the benchmark of actual losses and on the presumption that the differential amount relates to inputs which have been clandestinely removed. The amount of duty sought to be reversed is also calculated based on the average value of the inputs and average rates of duty - such demand based on mathematical calculation is not supported by law. Whether the assessee is entitled to the credit of CENVAT on invoices which show that the goods were received in vehicles which on verification were found to be not capable of transporting the goods? - Held that:- It is evident that it is impossible to carry inputs weighing in tonnes in these vehicles. If the assessee asserts that they had, in fact, received the goods in these vehicles, it is for them to show how. It is a well established principle that ‘he who asserts must prove’. This is especially true when one claims an evident impossibility to be a fact - the assessee could not have received inputs in them and is not entitled to the CENVAT credit on the invoices under which the goods were supposed to have been received from M/s Lakshmi Gayatri Iron and Steel Ltd. - The penalty on the assessee under Rule 15(2) of the CENVAT Credit Rules r/w Section 11AC is also reduced to ₹ 2,26,303/-. The penalty on Shri Anil Kedia, Managing Director of assessee is reduced to ₹ 50,000/-. Appeal allowed in part.
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