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2015 (11) TMI 777 - CESTAT NEW DELHI

2015 (11) TMI 777 - CESTAT NEW DELHI - 2015 (329) E.L.T. 849 (Tri. - Del.) - Disallowance 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 ap .....

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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 c .....

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ce G. Raghuram: Heard the respective parties. The appeal is preferred against the order dated 28.2.2013 of the ld. Commissioner (Appeals), Customs and Central Excise, Noida. This order rejected the appeal preferred by the assessee/appellant herein and confirmed the adjudication order dated 31.10.2012 passed by the Additional Commissioner, Noida. The primary order dated 31.10.2012 passed by the Additional Commissioner disallowed the cenvat credit and directed its recovery on the ground that cenva .....

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on inputs and capital goods received in the factory for use in or in relation to manufacture of final products and had thus contravened provisions of Rule 3 of Cenvat Credit Rules, 2002 as amended and Rules 4,6, 8 and 11 of CEA, 2002. The contravention alleged was that the appellant availed cenvat credit of ₹ 8,61,387/- during April 2002 to March 2004 but had utilized the same towards payment of duty on finished goods cleared from the appellants factory though the value of inputs received .....

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of cenvat credit and penalty was ordered. Aggrieved, the appellant preferred an appeal before this Tribunal which was disposed on 19.7.2011 in Excise Appeal No.2924/2009. The Tribunal ruled that there was a categorical finding in the impugned proceedings that the appellant failed to produce supporting documents to show it had not availed input credit on the goods returned to them; that therefore the duty is demandable; that the appellant had contended that invoices and debit notes were produced .....

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. On careful consideration of the matter it is noticed that there are two relevant aspects for consideration in the appeal. The first aspect is regarding the factum of availment of cenvat credit by the appellant on those inputs issued in manufacture of goods which were supplied to third parties and after such clearance some were returned and debit notes were recorded by the appellant. This aspect, i.e. whether the appellant availed cenvat credit on inputs which went into manufacture of final goo .....

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t notes were recorded, the burden of proof to establish the fact of the appellant having availed cenvat credit on those inputs is on Revenue. After such burden is discharged by Revenue, the onus shifts to the appellant/assessee to establish , if it could , that it had reversed the cenvat credit availed, on returned goods. As recorded by the debit notes the correlation between the debit notes and the invoices in respect of which the debit notes were recorded is the second aspect. 8. It has been t .....

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e goods had been received back vide the debit note. 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 Revenues 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 ava .....

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