TMI Blog2011 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Cenvat credit by the respondent on the said capital goods - Hence, the appeal filed by the revenue devoid and is rejected. - 972 of 2009 (SM) - - - Dated:- 12-5-2011 - Mr. M.V. Ravindran, J. Shri A. Khanna, Authorized Representative (DR) for the appellant. Shri V.K. Agarwal, Advocate for the Respondent. Per. M.V. Ravindran :- This appeal is filed by the Revenue against order-in-appeal No. 01-CE/GZB/2009 dated 14/01/2009. 2. Heard both sides and perused the records. 3. The issue involved in this case is that the revenue was of the opinion that the respondent has availed Cenvat credit on the capital goods used in the manufacturing of finished goods and subsequently sold the same. Show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods there were no provisions of availment of Cenvat credit on capital goods. In absence of appropriate copies of Invoices/ Bills of Entry and relevant RG-23A Pt.I/Pt. II of such capital goods, no inference can be drawn that no credit was taken against such goods. (ii) Because, the Chartered Accountant s certificate cannot be treated as a proper document for confirming whether credit against the capital goods cleared by the party was availed or not. It can only be ascertained on the basis of duplicate copy of Gate Pass/Invoice and appropriate copy of Bill of Entry which were the only valid documents for availing credit under the CENVAT Rules during the relevant time. (iii) Further, the Commissioner (Appeals) has also not properly ans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he credit has been availed by him or not. 5. Learned Counsel appearing for the respondent would submit that revenue has not submitted any evidence to indicate that appellant has availed Cenvat credit of the duty paid on such capital goods. He reiterates the findings of both the lower authorities. 6. On careful consideration of submissions made by both sides and perusal of the records, I find from the concurrent findings of the lower authorities, that the appellant was able to demonstrate before them that they have not availed the Cenvat credit of the duty paid on capital goods. From the reproduced grounds of appeal (in para 4) of the department, it is seen that the department is seeking the respondent to prove the negative, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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