2013 (10) TMI 332

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....ng neither inputs nor capital goods are not eligible for Cenvat credit, issued a show cause notice for recovery of the Cenvat credit alongwith interest and imposition of penalty. Show cause notice was adjudicated by Assistant Commissioner vide order-in-original dated 29/2/12 by which the above-mentioned Cenvat credit demand was confirmed along with interest and penalty of equal amount was imposed. On appeal being filed before the Commissioner (Appeals), the order of the Assistant Commissioner was upheld vide order-in-appeal dated 30th January 2013. In course of proceedings before the Commissioner (Appeals), the appellant had made a claim that the steel items, in question, were used for fabrication of capital goods namely Bag Filter, Conveye....

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....appellants claim regarding use of the steel item has to be accepted and Cenvat credit must be allowed, that the impugned order is, therefore, not correct, that the appellant have a strong prima facie case in their favour, the requirement of pre-deposit of Cenvat credit demand, interest and penalty may be waived for hearing of their appeal and that its recovery may be stayed during the pendency of the appeal. 4. Shri P.K. Sharma, the learned DR, opposed the stay application by reiterating the findings of the Commissioner (Appeals) in the impugned order and, pleaded that while the steel items, in question, had been received during July 2010 to December 2010 period, the extract of RG-1 register placed on record by the appellant shows the m....

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....f proof regarding the admissibility of the Cenvat credit availed in respect of an item shall lie upon the manufacturer. Hence in this case, the admissibility of the Cenvat credit is dependent upon the use of the inputs in fabrication of capital goods. Therefore, when in respect of steel items like MS Angles, Channels, Bars, Plates etc. a manufacturer avails Cenvat credit claiming that these items have been used in fabrication of capital goods for use in the factory, the burden of proof that the steel items were used in fabrication of capital goods for use as the factory is on him and this burden of proof can be discharged by him either by direct communication to the Jurisdictional Central Excise authorities regarding the use of these items ....