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2019 (2) TMI 399 - AT - Central ExciseCenvat credit - Held that: - Tribunal has in case of M/s Everest Metal Works [2008 (10) TMI 495 - CESTAT, NEW DELHI} held that: - I do not wish to make comments on the correctness of either of the two orders. If the appellate authority was of the view that the order of the adjudicating authority was not based on cogent evidence, the matter could have been sent for de novo adjudication. The onus to prove that the goods in question were actually received is clearly on the person who claims to have purchased and received the goods. If the person claims some benefit he has to prove the foundational facts. The Commissioner (Appeals) was not correct in fastening the onus on the Department and on the ground that the Department has failed to establish the non-receipt of the goods by the respondent, set aside the order without consequential order of remand. Clearly the Department cannot prove the non-receipt, the assessee has to prove by positive evidence the receipt of goods so as to enable him to take cenvat credit. Since Commissioner has not examined the evidences gathered by the revenue during course of investigation and rendered finding categorical finding in respect of them and the receipt of the goods covered by the said invoice by the respondent, we are without expressing any opinion on the evidences and submissions made by the appellants remand the matter back to Commissioner for reconsideration of entire issue afresh - Appeal allowed by way of remand.
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