9911796707
TMI Blog2010 (2) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... gent material on record, the assessee cannot legally be denied. - 2 of 2004 - - - Dated:- 5-2-2010 - Ashutosh Mohunta and Mehinder Singh Sullar, JJ. Shri Gurpreet Singh, Sr. Standing Counsel, for the Appellant. Shri M.S. Gupta, Advocate, for the Respondent. [Order per : Mehinder Singh Sullar, J.]. - The compendium of facts culminating in the commencement of, revelant for disposal of present appeal filed by the revenue and emanating from the record is that the respondent-assessee M/s. Emdet Engineers Pvt. Ltd. (for brevity "the assessee") was engaged in the manufacture of motor vehicle parts. The revenue claimed that during the relevant period form March 1988 to March 1994, the assessee wrongly availed/utilized the modvat c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue, which it had failed to discharge. In all, according to the assessee, it has rightly availed the facility of modvat credit. In order to substantiate its claim, the assessee has relied upon the various judgments as mentioned in the reply. 3. The explanation offered by the assessee did not find favour with the Adjudicating Authority, which ordered the recovery of modvat credit from the assessee, vide impugned order dated 19-5-2000 (Annexure P1). 4. Aggrieved by the impugned order (Annexure P1), the assessee filed the appeal, which was also dismissed by the Commissioner, Customs Central Excise (A), Chandigarh, vide order dated 17-10-2002 (Annexure P2). 5. Still dissatisfied with the impugned orders (Annexures P1 and P2), the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck as are clearly recognizable as non-duty paid shall be deemed to aluminium xxx p and product thereof on which the duty has already been paid. We have carefully considered the submission made by both the sides. We find on this very issue, there has been decision of larger Bench of the Tribunal in the Machine Builders and others v. C.C.E, Bolpur reported in 1996 (12) RLT 817 dealing with a situation like the present one. In these appeals the larger Bench of the Tribunal in Para 23 of the decision had observed that in case of conditional notification onus is on the Revenue to prove that scrap is clearly non-duty paid and this onus is not discharged by the Revenue. In view of the above decision of the Tribunal, the impugned order is set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inputs used by the assessee are not covered under the notification dated 1-8-1994, so it (assessee) is entitled to avail the facility of modvat credit. 11. Having regard to the rival contentions of the learned counsel for the parties and having gone through the record, we are of the considered view that there is no merit in the present appeal. 12. It is not a matter of dispute that the assessee was engaged in the manufacture of motor vehicle parts and it has availed the facility of modvat credit. Now the revenue claimed that the inputs used by the assessee are recognizable as non-duty paid, so it is not entitled for the modvat credit. The assessee has stoutly denied the same. 13. The following question of law was under considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sufficient to infer that the inputs used by the assessee are wholly exempted from duty or clearly recognized, as not being duty paid or charged to nil rate of duty, particularly when the assessee has stoutly denied the same. Again, it is not a matter of dispute that the assessee is using the different type/kinds of Aluminium Alloys Ingots, waste and scrap of Aluminium and waste and scrap of Zinc. In that eventuality, burden of proof was on the Department to prove that the inputs used by the assessee were not being duty paid or charged to Nil rate of duty, which is totally lacking in the present case. The natural corollary would automatically follow that in the case of conditional exemption, unless it is shown that all the conditions are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
