2008 (10) TMI 495 - AT - Central Excise

Summary

Issues involved:
The issue involves the recovery of cenvat credit under rules 57-(1) and 57-AH of the Central Excise Rules, 1942 read with Section 11-A of the Central Excise Act, based on the actual receipt of goods by the appellant.

Summary:
The appeal by the Revenue was against the order-in-appeal of the Commissioner (Appeals) dated 6-2-2007, which set aside the original authority's order. The original authority found that a sum of Rs. 1,83,201/- availed as cenvat credit on certain invoices was recoverable under specified rules. However, the appellate authority held that the Department failed to prove that the appellant did not receive the inputs, thus deeming the original order unsustainable due to lack of concrete evidence. The appellate authority emphasized the need for the appellant to prove the actual receipt of goods to claim cenvat credit.

The Judge refrained from commenting on the correctness of the orders but highlighted that if the appellate authority doubted the basis of the original order, the matter should have been sent for fresh adjudication. The burden of proving the receipt of goods lies on the person claiming the benefit, not on the Department. The Judge criticized the Commissioner (Appeals) for shifting the burden to the Department and setting aside the order without a remand order. It was emphasized that the assessee must provide positive evidence of goods receipt to claim cenvat credit.

In conclusion, without delving into the case's merits, the Judge set aside the appellate order and directed a fresh adjudication by the Assistant Commissioner in accordance with the law. The appeal was disposed of accordingly on the 31st day of October, 2008.