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TMI Blog2010 (3) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... - 18 and 7 of 2004 - - - Dated:- 19-3-2010 - Ashutosh Mohunta and Mehinder Singh Sullar, JJ. Shri H.P.S. Ghuman, Sr. Standing Counsel, for the Petitioner. Shri J.S. Toor, Advocate with Ms. Divya Godara, Advocate, for the Respondent. [Order per : Mehinder Singh Sullar, J.]. - As common question of law and facts are involved in both the aforementioned reference petitions, therefore, we propose to decide the same, vide this single judgment, in order to avoid the repetition. However, for facilitation, the facts have been extracted from GCR No. 18 of 2004 titled as "Commissioner of Central Excise, Chandigarh v. Khalsa Charan Singh and Sons". 2. The matrix of facts, culminating in the commencement, relevant for disposal, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer manufacturing final products specified in Notification 177/88 dated 1-3-88 are deemed to have paid the specified duty at the specified rate. The only exceptions to this presumption were that (i) duty payment would not be presumed in case credit of specified duty had already been availed of under any rule or notification, (ii) such inputs were clearly recognizable as non-duty paid or charged to nil rate of duty or (iii) inputs as such where reduction of duty as has been provided under Notification No. 55/86 dated 10-2-86 has been claimed and documentary evidence exist to show that reduced duty has been paid on such inputs. In such cases, only actual duty paid could be allowed. Revenue has not led any evidence to prove that these except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties and have gone through the records of the cases with their valuable assistance. 6. At the very outset, the celebrated argument of the learned counsel for the assessee that since the indicated goods were not specifically mentioned in the order dated 7-4-1986, so, the assessee cannot claim the modvat credit in this connection, is not only devoid of merit, but misplaced as well. On the contrary, relying upon the Board's instructions F. No. 267/46/88-CX-8, dated 5-4-1988 and Circular No. 18/89 dated 6-6-1989, the contention of the assessee that burden of proof is on the revenue, in this regard, has considerable force. 7. It is not a matter of dispute that the assessee was dealing in old rollable material/re-rollable material and scra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of modvat credit to it (assessee). 9. The argument of the learned counsel for the revenue that burden of proof, under such circumstances, was on the assessee, again has no force. The well settled basic principle of (evidence) burden of proof is that whosoever desires, any authority to give judgment as to any right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist and when a person is bound to prove the existence of any fact, it is said that burden of proof lies on that person and the burden of proof in the proceedings lies on that person, who would fail if no evidence at all was given on either side. As indicated earlier, the dispute of duty paid character of the goods has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n fact the revenue has failed to prove that the inputs used by the assessee are recognizable as not being duty paid or charged to Nil rate of duty. In that eventuality, the exemption already availed by the assessee must be regarded as having been rightly availed. Therefore, it is held that burden of proof was on the revenue to prove that the inputs used by the assessee were not being duty paid or charged to Nil rate of duly and in the absence of any cogent material on record in this relevant connection, the assessee cannot legally be denied the right to avail the facility of modvat credit. " 12. Likewise, the same view was reiterated by this Court in WTA No. 17 of 2008 titled as Commissioner of Income-tax (Central), Ludhiana v. Smt. Neena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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