1997 (12) TMI 404

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..... ion, Shri D.K. Nayyar, the ld. JDR, submitted that the burden of proof was on the assessee in as much as the claim for deemed Modvat credit is filed by him. He submitted that it is the claimant who has to substantiate his claim and not the Department as held in the impugned order. He, therefore, prays that a question of law arises out of the order and, therefore, reference should be made to the High Court. 3. Heard the oral submissions of the ld. JDR, perused the written submissions made by the Respondents. We note that the Government of India in its order, dated 7-4-1986 used two sets of words, clearly recongisable as `being non-duty paid and `charged to NIL rate of duty . Reading these two sets of words clearly indicates that the Asses .....

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..... posses such documentary evidence of payment of duty and manufacturers who use such inputs may be deprived of the benefit of Modvat scheme. Deemed Modvat credit is to give this class of users of such inputs that second proviso has been introduced. There is nothing in the proviso to Rule 57G(2) to show any intention to extend the benefit to those specified goods whose use as inputs in the manufacture of specified goods on which excise duty has actually not been paid. The purpose of the second proviso is to empower the Government to implement a deeming provision i.e. a provision to deem that the inputs are duty paid. The intention is not to deem that inputs which actually did not suffer duty but inputs which suffer duty. The purpose is to ensu .....

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..... es rate of duty, but duty has been wholly exempted; (iii) goods are not cleared by the manufacturer; and (iv) goods are cleared clandestinely evading duty. 7. Item (i) makes it clear - the duty is not payable and therefore goods will be non-duty paid. Item (ii) the goods are recognisable as duty is not to be paid. Item (iii) is not relevant because duty is chargeable only when goods are cleared. Item (iv) is not relevant. Therefore, the terms used in this order are `clearly recognisable as being non-duty paid include all inputs on which duty has not been paid, that duty has actually not being paid for any reason. Therefore, in cases where the notification is conditional, the onus is on the Department to prove that the goods are clearly .....

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