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TMI Blog1998 (1) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... (99) E.L.T. 273 (Tribunal)] and Final Order Nos. A/583-590/97-NB, dated 13-5-1997 : Whether deemed credit can be availed on old and used broken Aluminium - machinery parts like Compressors, Parts of cars, Motor Cycles, Scooters, Aluminium parts of Bus Bodies and parts of Aeroplane etc. purchased from open market and Kabaris in terms of Government of India, Ministry of Finance letter F. No. 342/1/TRU, dated 12-7-1990 issued under Rule 57G(2) or not ? 3. (a) The relevant paragraph of the Tribunal s Final Order Nos. A/649-650/97-NB [1998 (99) E.L.T. 273 (Tribunal)] fin which the above issue is discussed is Paragraph 18 which is reproduced hereunder : 18. In so far as the second issue of availability of deemed Modvat credit is concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ro Stampings - 1988 (37) E.L.T. 323 and Rapsri Engineering Industries Pvt. Ltd. - 1989 (43) E.L.T. 577. In Upper India Steel Manufacturing and Engineering Co. Ltd. v. Union of India - 1990 (49) E.L.T. 22 (P H), the Punjab and Haryana High Court observed : `It has been stated that the.notification P-3 is in the nature of an exception. The normal rule of construction is that if a person wants to avail of the exception, it is for him to make out a case showing that he is covered by the exception. The issuance of the notification Annexure P-3, dated April 7, 1986, and the prescription of the three exceptions reproduced above, clearly indicates that the matter has not been left to presumptions. It is regulated by positive rules, inter alia, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and marshal arguments and logic to show that he is so entitled to the benefit of the order. He should also take a definite stand that his case does not fall within the exceptions enumerated in the explanation to the Government order. Where there is an exemption notification, and if ex facie the exemption is attracted in regard to the inputs used by him, he should take a stand as to why the notification is not attracted. It is then for the Revenue to verify the claim by conducting such enquiry as is necessary, and pass appropriate orders. Where the exemption notification is conditional, the assessee has to take a stand that the conditions are not satisfied in the instant case and it is for the Revenue to conduct enquiry and arrive at a corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le as non-duty paid or charged to nil rate of duty. It is therefore for the Revenue by conducting necessary enquiry (and it shall be the duty of the assessee to cooperate) to see if the conditions are satisfied and the exemption notification has fully taken effect in regard to the inputs in question. Revenue cannot be heard to say that it is for the assessee to show that the conditions are not satisfied and since he had failed to do so, the exemption must be regarded as having taken effect. It has to be appreciated that in the generality of such cases, the person who clears the inputs is not the assessee, but the manufacturer of the inputs and the assessee might not have purchased the same directly from the manufacturer but might have purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, requests that the Reference Application may be rejected. 7. We have heard the submissions and counter submissions and have perused the relevant paragraphs of the impugned orders. We note that the Tribunal had relied on its earlier Orders. We further note that in the paras of the orders relied upon by the Tribunal, the Tribunal discussed the items in different paragraphs of its order. We also note that one of the conditions of the Government of India order permitting deemed Modvat credit was that the goods should be clearly recognisable as non-duty paid. In the instant case, the respondents had submitted all the documents concerning the goods. It was for the Department to verify the facts and then conclude. The question whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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