9911796707
TMI Blog2010 (3) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 present reference petitions and emanating from the record is that the respondent-assessee M/s. Khalsa Charan Singh and sons (for brevity "the assessee") was dealing in old rollable material/re-rollable material and scrap. A show cause notice was issued to the assessee, proposing to deny proforma credit availed by it under the modvat scheme, on the ground that as the "old rollable material/re-rollable material and scrap" is not specified in the Government of India's Order No. B-22/5/86-TRU, dated 7-4-1986, therefore, it (assessee) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exceptions were attracted in the case of the impugned goods. Therefore, the burden of establishing duty paid character cannot be passed on to the Appellants herein. Further, the dispute of duty paid character of the goods has been raised by the Revenue and if the Revenue has any doubt about the duty paid character of the goods, the burden to prove so rests squarely on the Revenue. The Tribunal also observed that it was not the contention of the Revenue that the disputed goods were otherwise covered by a unconditional exemption in the sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see 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 scrap and the indicated inputs purchased by it (assessee) were being used in the manufacturing of final products, at the relevant time. The Govt. of India's order dated 7-4-1986 clearly postulates that "any goods purchased from outside and lying in the stock on or after 1986 with the assessee manufacturing the final products specified in the Notification No. 177/88 dated 1-3-1988, are deemed to have paid the specified duty at the specified rate. Therefore, the assessee would be deemed to have paid the specified duty at specified rate, as per orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been raised by the revenue and if the revenue has any doubt about duty paid character of the goods, then the burden of proof so raised squarely lies on the revenue. 10. As is evident from the order dated 7-4-1986 that the goods purchased from outside and lying in stock on or after 1986 with the assessee manufacturing the final products specified in the notification dated 1-3-1988, are deemed to have paid the specified duty at the specified rate. Hence, the assessee was entitled to avail modvat credit. If the department wanted to deny the statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght 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 Jain c/o M/s. Sweety Fabrics (P) Ltd. decided on 19-2-2010. 13. Sequelly, in some what similar circumstances, Hon'ble Supreme Court in cases Collector of C. Ex. v. Decent Dyeing Co. - 1990 (45) E.L.T. 201 (S.C.) and Commissioner of Customs v. Auto Ignition Ltd. - 2008 (226) E.L.T. 14 (S.C.) has approved the view that onus of proof on availment of credit of duty paid character, is on the revenue and not on the assessee. The law laid down in the aforesaid judgments "mutates mutandi" is applicable to the present controversy and is the complete answe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
