9911796707
TMI Blog1991 (7) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... m payment of Central Excise duty in respect of Waste and Scrap of Copper and Aluminium conferred under Notification No. 172/84, dated 1-8-1984 and 182/84, dated 1-8-1984 are unconditional exemption for Waste and Scrap of Copper and Aluminium. (2) Whether the Hon ble Tribunal was correct in holding the view that the Department will be within its right to hold that the Waste and Scrap of Copper and Aluminium are clearly recognisable as nonduty paid and deny the Deemed Credit thereon. (3) Whether the Hon ble Tribunal was correct in law in holding the view that the burden of proof as to the duty paid nature of the inputs was on the Applicant and not on the Department as held by the North Regional Bench of CEGAT in the case of Collector Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these materials if they are made out of duty-paid Copper and products thereof with Explanation to the Notification laying down that for the purposes of these notifications all stocks of Copper and products thereof and all stocks of Aluminium and products thereof shall be deemed to be duty paid. Therefore, it can be said that it is an unconditional exemption for scrap of Copper and scrap of Aluminium in these two Notifications with a suitable deeming provision. However, the same cannot be said of Notification No. 149/86 relating to unwrought Copper because in this notification, there are certain conditions for availing of exemption relating to unwrought Copper whether proforma credit or MODVAT credit have been availed or not, and also laying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods having been legally cleared availing of the exemption. Now the question is as to whether they could be construed as goods charged to nil rate of duty. The department s contention is that since the goods are exempted, they are to be construed as goods charged to nil rate of duty. We are unable to appreciate this stand for the following reason : The words charged to nil rate of duty appear to have a special significance. Section 3 of the Central Excises Salt Act is the charging section. Thereunder, it is laid down that duty of such excise on all excisable goods shall be levied and collected at the rates set forth in the First Schedule. Hence, levy and collection on excisable goods is to be done as per the rates set forth in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on the raw materials out of which the input in question viz. Aluminium castings emerged. There is no warrant in law for extending the benefit of the MODVAT credit in the way the appellants have sought for in the appeal. It is not the case of the appellants that the goods were purchased from the open market and were not from a factory and that in terms of Rule 57G(2) they will become eligible for the MODVAT credit ........ .......................... The basis of the Govemment of India s instruction is this Rule 57G(2). This rule specifically ordains that benefit of the deemed credit is not allowable to such stocks as are Iying in a factory or Customs area or a warehouse as are clearly recognisable as being non-duty paid. In the MOD ..... X X X X Extracts X X X X X X X X Extracts X X X X
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