TMI Blog2023 (10) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... g details. The CENVAT credit has been denied by the learned Commissioner merely on the basis of assumption and presumption which is arbitrary and not as per law. While deciding the issue raised in the show cause notice about nexus and non-registration of premises at Delhi , in favour of the appellant the said 1st appellate authority denied the CENVAT credit to the appellant by taking recourse to the provision of Rule 9(6) ibid merely on the basis of assumption and presumption by recording the finding that the possibility of having provided exempted Excise duty activities only from the said cannot be ruled out and therefore in such situation, the impugned credit would be ineligible to the appellant which, is not sufficient to deny the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the appeal on the ground that since the possibility of having provided exempted excise duty activities from the premises in issue cannot be ruled out the impugned credit would be ineligible to the appellant and in such situation under Rule 9(6) of CENVAT Credit Rules, 2004 the burden to prove the admissibility of the said CENVAT Credit shall lie upon the manufacturer or provider of output services taking such credit. According to the learned Commissioner since the appellant has failed to provide any such proof as per rule 9(6) ibid, the CENVAT credit cannot be allowed to the appellant. 2. In brief, the facts leading to the filing of the instant appeal are that during the course of audit it has been observed that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected the appeal by observing that there is possibility of providing exempted excise duty activities from the said New Delhi premises and as the appellant has failed to discharge the burden of proof as mandated under Rule 9(6) ibid, therefore the CENVAT credit cannot be allowed to the appellant. 3. I have heard learned counsel for the appellant and learned Authorised representative for the Revenue and perused the case records including the written submissions/synopsis and case laws placed on record. Since the issues regarding nexus as per rule 2(l) ibid and registration of New Delhi premises have already been decided by the learned Commissioner in favour of the appellant therefore the issue involved herein is in a very narrow compass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ruled out and therefore in such situation, the impugned credit would be ineligible to the appellant which, according to me, is not sufficient to deny the credit to the appellant. Another thing has been noticed by me while going through the case papers that although the learned Commissioner has denied the CENVAT credit to the appellant for not discharging the burden of proof as laid down u/r. 9(6) ibid, the show cause notice dated 9.7.2019 has invoked the provision of Rule 9(5) ibid by stating that the appellant have failed to produce burden of proof regarding the admissibility of the credit, which lies upon the manufacturer or provider of output service taking such credit as per Rule 9(5) of CCR [emphasis supplied]. There is no mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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