2011 (5) TMI 73

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..... s 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 issued demanding .....

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..... The said grounds of appeal read as under :-   (i) Because the said order-in-appeal is totally silent on the grounds of appeal that availment/non-availment of Modvat/Cenvat credit can only be determined on the basis of duplicate copy of invoice and copies of RG23A Pt. I/Pt. II. Until and unless capital goods cleared by the party are not linked with their respective invoices/Gate Pass/Bill of .....

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..... cate 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 answered the second ground of appeal with regard to credit of 50% in subsequent year. The Additional Commissioner had originally dropped the demand verify .....

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..... e capital goods cleared by the party with the consolidated entries in the balance sheet without seeing the appropriate purchase documents/ inventory records.   (iv) Because every manufacturer of excisable goods availing facility of Cenvat credit on inputs and capital goods has been required to maintain the appropriate record under Rule 7 of the then Cenvat Rules for the receipt, disposal, co .....

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..... 4) of the department, it is seen that the department is seeking the respondent to prove the negative, which is incorrect proposition of law. The revenue has not been able to produce any evidence regarding the availment of Cenvat credit by the respondent on the said capital goods.   7. Accordingly, in view of the concurrent findings, to my mind, the lower authorities were correct dropping th .....

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