2001 (10) TMI 413 - AT - Central Excise

Summary

Issues: Availability of deemed Modvat credit under Rule 57G(2) of the Central Excise Rules for aluminium scrap and copper scrap purchased from the open market.

Analysis:
1. The appellant argued that the scrap purchased from the open market should be treated as duty paid unless proven otherwise by the Department. They relied on various decisions, including the Supreme Court's ruling in Decent Dyeing Company, emphasizing that all goods in the open market should be considered duty paid unless evidence shows otherwise. Additionally, they cited precedents like Collector of Central Excise v. M/s. Kutty Flush Doors and Furniture Company P. Ltd. and CCE v. Shree Vindhya Paper Mills to support their claim. The appellant also referred to the decision in the case of Indian Plastics Ltd. v. CCE, where it was held that the burden of proof lies with the Revenue to establish the conditions for exemption.

2. In response, the Department argued that the scrap in question was wear and tear scrap, mainly from old and used articles, which cannot arise during the manufacturing process of aluminium/copper articles. They contended that the scrap was clearly non-duty paid, citing the Larger Bench decision in the case of Machine Builders to support their stance. Additionally, they referred to the case of CCE v. Electro Steel Casting Ltd., where it was held that certain items, like old household scrap, are not excisable and, therefore, not subject to duty payment.

3. The Tribunal considered both arguments and noted that the adjudicating authority had found the scrap to be wear and tear scrap from old and used articles. The appellant failed to provide evidence to counter this finding, shifting the burden of proof to them. The Tribunal clarified that the precedents cited by the appellant were not applicable to the present case, as they dealt with different factual scenarios. Referring to the decision in the case of Electro Steel Casting Ltd., the Tribunal emphasized that items not arising from a manufacturing process are not excisable and, therefore, not subject to duty payment. Consequently, the Tribunal upheld the Department's decision and rejected both appeals.