9911796707
TMI Blog1993 (6) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The appellants, engaged in manufacture of articles of copper or copper based alloy, have been availing of the MODVAT facility on due compliance with the statutory requirements therefor. On the surprise visit and inspection of the records on 26-2-1991 by the officers of the Central Excise Department, at the appellants' factory premises, it was revealed that the appellants, amongst other articles, were purchasing copper/brass scrap as the input for their final product and were taking deemed credit in relation thereto, as was permissible. Availment of credit, on part of the said input namely the copper scrap, was however alleged to have been not admissible, as the copper scrap was purchased by the appellants from M/s. Maharashtra State Smal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount equivalent thereto should not be recovered, and also as to why total duty of Rs. 13,84,490/- paid through RG-23A Part II, on copper pipes and tubes, more than the MODVAT Credit available, should not be recovered. The appellants were also called upon to show cause, why penalty as contemplated under Rules 173Q, 9(2), 209A and 210 of the Rules should not be imposed. 2.2 The appellants, vide their reply dated 24-8-1991, denied the allegations and pleaded that extended period was, in any case not available as there was no act of suppression on their part. They also pleaded that as was held by the Tribunal in Arun Auto Springs v Collector - 1990 (49) E.L.T. 543, prior to 2-5-1988, even inputs which were wholly exempt from duty were eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified. 4.1 Shri Vipin Kumar Jain, the ld. Chartered Accountant appearing for the appellants, has pleaded that vide Notification No. 172/84 dated 1-8-1984, the copper scrap had become eligible input for availment of deemed credit and only such of the scrap which was clearly recognisable as being non duty paid, was kept out of the benefit under the said Notification. In his submission, when by a specific exclusion clause, a specified class of scrap has been withdrawn from availment of the benefit of deemed credit, it is entirely for the department alleging non availability of the benefit, which otherwise is available, to prove the same, and the benefit thereunder could not be denied on assumptions or presumptions, that the scrap that was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain, the ld. JDR, has, however, while supporting the order, submitted that, there is no dispute over the point that the subject Scrap is the one disposed of by the Ammunition Depots and obviously, those depots, receive the scrap generated in manufacture of Ammunitions, which do not suffer any Excise duty, and as such the scrap has to be taken as clearly recognisable as non duty paid. He has also referred to various contracts for sale of scrap as also the evidence collected from MSSIDC and NSIC, and has pleaded that they all lead to establish that the scrap had not suffered any duty. During the course of initial hearing of the appeal a query was raised as to why no enquiry was made at the concerned Ammunition Depots, and hence, at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. It is undisputed and even otherwise recognised by several judicial pronouncements that when a specific averment is made, about existence of a particular fact and non availability of the facility, otherwise made available to all those similarly situated, the party alleging such exclusion is required to establish the same. Further, even in the exclusion provision incorporated in the Notification granting the facility of deemed credit, non applicability thereof is only to such of the items which are "clearly" recognisable as non duty paid. This indicates that the benefit is to be denied only when exclusion provision could be straight-way applied and there is no area for doubt. 7.1 Here, there is no challenge to the fact that the copper s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 278/82, may fall within non duty paid item. With exemption from whole of duty being available only for some specific type of manufactured items, and with the letter from the Ordnance Factory indicating that some scrap in relation to the production at their factory does not even go as a scrap for disposal, coupled with no evidence as to what type of copper scrap is being disposed of at the Ammunition Depot, it is not possible to conclude that the scrap received from the Ammunition Depots is "clearly recognisable as non duty paid" or is exempted so as to deny the benefit of "deemed Credit". 7.2 The contracts referred to by the ld. JDR, are of general nature and as has been rightly concluded by the ld. Adjudicating Authority, would not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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