TaxTMI 
TaxTMI 
2015 (6) TMI 784
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....it of minimal analysis of relevant facts and the material on record. 2. On 18/10/12, show cause notice was issued to the appellant/ assessee proposing recovery of Rs. 73,68,121/- for irregular/ unauthorized availment of Cenvat credit in violation of Rule 6 of the Cenvat Credit Rules, 2004, on the ground the appellant was providing both taxable and exempted services but failed to maintain separate accounts in respect of these services and availed Cenvat credit on inputs which were commonly used for both taxable and exempted services. 3. In response, the assessee vide the response dated 4th February 2014 clearly and categorically pleaded in paragraph 6 (c) of the reply that the allegation of availment of Cenvat credit on common inputs a....
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....nowhere admitted to have availed Cenvat credit on common inputs/input services used for providing both texable and exempted output services. This finding by the Authority, of an admission by the appellant is perverse, contrary to the categorical denial by the appellant, of availment of common inputs/input services as contained in para 6 (c) of its reply dated 04/2/14 to the show cause notice and is therefore a finding which is contrary to the record. 6. In para 27, the Authority observes that it is not the duty of the Department to establish that the appellant have not maintained separate records . This observation is fallacious. Revenue had alleged that the appellant failed to maintain separate accounts. The appellant disputed thi....
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....ut services. This is a contention that is stated to be rejected. An Annexure to a show cause notice do not per-se provide a legal basis for a conclusion in an adjudication that the appellant violated provisions of Rule 6 (2) by failing to maintain separate accounts in respect of taxable and exempted services or had utilized common inputs/input services. There is not a single sentence in the entire adjudication order which records the evidence or material on the basis of which the Adjudicating Authority records the finding that the appellant failed to maintain separate accounts. We have earlier noticed that in para 27 it is observed that it is not the burden of Revenue to establish that the appellant maintained separate accounts. In the abse....
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....ing non-taxable services. On the basis of this submission it is contended, that if it was found that the appellant had availed credit on inputs and input services which are common to both taxable and exempted services, the demand should be restricted to Rs. 1,81,386/-, which is the position that obtains on the basis of Okay Glass Industries vs. CCE, Kanpur (supra). 10. On the analysis above, we set aside the impugned order. Normally we would have allowed the appeal in toto based on the perverse finding in para 27 of the order inference of availment of credit on common inputs/input services based on an admission (non-existent) of the appellant, of having availed Cenvat credit on common inputs and input services of both taxable and exempte....