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TMI Blog1991 (7) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... s not tenable. In view of this the Cross Objection is dismissed as not maintainable. 2. A. No. E/1/89/MAS. - The learned Collector is in appeal against the findings of the learned Collector (Appeals) allowing the benefit of MODVAT credit in respect of the scrap purchased from the market. Brief facts of the case are that the Respondents availed of MODVAT credit in terms of Order F. No. B22/5/86-TRU, dated 7-4-1986 under Rule 57G(2) allowing deemed credit in respect of waste and scrap. This benefit was available till 29-8-1986 when the deemed credit facility in respect of waste and scrap of iron and steel was withdrawn. The appellant-Collector urged the following grounds of appeal :- The scrap received by the assessee is collected by str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hine, turning and borings etc. and the purchases were made from Railways and other Government departments also. Pleading further, Shri Narasimhan stated that the genus of the scrap was such that it fell under Chapter Heading 7203.10 and 7203.20. He pleaded that the Respondents could not be now at this stage call upon to prove the character or quality of the scrap as the same had been already utilised and in the face of the reply to the show cause notice about the nature of the scrap used by them the Revenue now cannot argue that this scrap used by them was not eligible for the benefit of MODVAT credit. He also pleaded that the credit was given to the Respondents only after the verification of the nature of the scrap used. He pleaded that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant-Collector is that the scrap in question was bazaar scrap in the nature of broken tins, etc. and by its very nature the same has to be considered as non-duty paid and, therefore, not eligible for the benefit of the MODVAT credit. The respondents, however, contended that the scrap comprised of turnings and borings and various other types of good quality scrap and not of the type mentioned by the appellant-Collector. We observe that no evidence has been placed before us in regard to the nature of the scrap which was taken as input. The respondents in their reply to the show cause notice have indicated the type of scrap that was used by them. The learned original authority has not given any findings in regard to the nature of the scrap us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. As rightly pleaded by the Respondents, the onus is on the Department to prove that the credit taken by the Respondent was in respect of the non-duty paid scrap. This onus has not been discharged by the Department. In view of the above facts, we hold that the plea of the appellant-Collector is not maintainable in law and the appeal is, therefore, dismissed. 5. A. No. E/2/89/MAS. - This is an appeal against the order of the Collector of Central Excise (Appeals), Madras. 6. The learned SDR for the Department adopted the same argument as are put forth in Appeal No. E/1/89/MAS in the case of Andhra Steel Corporation Ltd. He pleaded that the additional factor to be taken into consideration in this appeal is that the vendors had given sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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