Cenvat credit on raw material shortages requires proof of admissibility; penalty fails absent suppression or misstatement.

Cenvat credit claimed on raw material shortages could not be accepted on tolerance or sympathetic grounds because no statutory basis existed to ignore the shortage; the manufacturer had to justify the credit against inputs shown short in audit records, and the demand was sustained. Rule 7(4) of the Cenvat Credit Rules, 2002 was correctly applied because it places the burden of proving admissibility of Cenvat credit on the assessee, who failed to show by records or other evidence that the inputs were used in or in relation to manufacture. Penalty under Section 11AC of the Central Excise Act, 1944 was deleted because no finding of suppression, misstatement, or clandestine removal was recorded, although duty and interest remained payable.

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Issues: (i) Whether, in the absence of any provision to ignore shortages within tolerance limit of raw material on which Cenvat credit is claimed, the authorities could ignore such shortages; (ii) whether Rule 7(4) of the Cenvat Credit Rules, 2002 was correctly applied in holding that the burden of proving admissibility of Cenvat credit lay on the assessee; (iii) whether penalty under Section 11AC of the Central Excise Act, 1944 was justified in the absence of suppression, misstatement or clandestine removal.

Issue (i): Whether, in the absence of any provision to ignore shortages within tolerance limit of raw material on which Cenvat credit is claimed, the authorities could ignore such shortages.

Analysis: The claimed credit arose from shortage of raw material noticed in the cost audit report. The Court held that there was no statutory foundation for treating such shortage as a permissible tolerance or for ignoring it merely on sympathetic considerations. The authorities were entitled to proceed on the basis that the assessee had to justify the credit claimed against inputs shown as short and not accounted for as used in manufacture.

Conclusion: The shortage could not be ignored, and the demand based on wrongful Cenvat credit was upheld in favour of Revenue.

Issue (ii): Whether Rule 7(4) of the Cenvat Credit Rules, 2002 was correctly applied in holding that the burden of proving admissibility of Cenvat credit lay on the assessee.

Analysis: Rule 7(4) expressly places the burden of proof regarding admissibility of Cenvat credit on the manufacturer taking such credit. The Court found that the assessee failed to show through records or other evidence that the inputs in question were used in or in relation to manufacture, and therefore the lower authorities had applied the rule correctly. The Tribunal's contrary view was rejected as unsupported by any statutory provision.

Conclusion: Rule 7(4) was correctly interpreted, and the restoration of the demand and interest was upheld in favour of Revenue.

Issue (iii): Whether penalty under Section 11AC of the Central Excise Act, 1944 was justified in the absence of suppression, misstatement or clandestine removal.

Analysis: The Court accepted that the Commissioner (Appeals) had recorded no finding of suppression, misstatement, clandestine removal or similar culpable conduct. In the absence of such ingredients, the drastic equal penalty could not be maintained, even though the demand and interest survived.

Conclusion: Penalty under Section 11AC was not sustainable and was set aside in favour of the assessee.

Final Conclusion: The duty demand and interest were restored, but the penalty was deleted, leaving the assessee liable for the tax consequence without the penal consequence.

Ratio Decidendi: Where Cenvat credit is claimed on inputs shown as short in audit records, the manufacturer must prove admissibility of the credit under the governing rule, and penalty under Section 11AC cannot be sustained without the statutory elements of suppression, misstatement, or equivalent culpable conduct.

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