2015 (11) TMI 777

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....l Commissioner, Noida. The primary order dated 31.10.2012 passed by the Additional Commissioner disallowed the cenvat credit and directed its recovery on the ground that cenvat credit was wrongly availed to the extent of Rs. 26,427/- and imposed penalty of Rs. 1,07,289/-. 2. The relevant facts are that the appellant is a manufacturer of CPP films, metalized and embossed CPP films and blister CPP films falling under CETH No.3920.36 of CETA, 1985. The appellant was availing cenvat credit in relation to manufacture of their final products. 3. Show cause notice was issued on 28.9.2007 alleging that the appellant was availing cenvat credit in respect of duty paid on inputs and capital goods received in the factory for use in or in relation to ....

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.... circumstances, the mater is being remanded for re-examination and the adjudicating authority is directed to verify documents produced by the appellants to support their claim and to consider the matter appropriately including on imposition of penalty. 5. After remittal by this Tribunal the adjudicating authority passed a fresh order dated 31.10.2012. The appeal there against was rejected by the impugned order. 6. On careful consideration of the matter it is noticed that there are two relevant aspects for consideration in the appeal. The first aspect is regarding the factum of availment of cenvat credit by the appellant on those inputs issued in manufacture of goods which were supplied to third parties and after such clearance some were r....

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....ipt by the appellant of goods on which cenvat credit was taken and therefore the cenvat credit availed by the appellant cannot be disallowed on the ground that some of the goods had been received back vide the debit note. The assertion in the show cause notice and the conclusion in the orders passed by the authorities below do not refer to any probative material or evidence to support Revenues assertion that the appellant availed cenvat credit on those inputs which resulted in the manufacture of final goods, some of which were returned to the appellant and are covered by the debit notes. Thus, Revenue failed to establish its assertion that the appellant had availed cenvat credit, an assertion which is clearly and categorically denied by th....