9911796707
TMI Blog1999 (3) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... , issued under second proviso to sub-rule (2) of Rule 57G permitted credit to be taken inter alia on specified commodities without production of duty paying document subject to the condition that such scrap is not clearly recognisable as non-duty paid or subject to nil rate of duty. Assessee took credit on such a consignment. 2. Notice was issued by the department disputing the assessees action in taking the credit without duty paying documents on the ground that the goods were clearly recognisable as non-duty paid. The notice relied on a certificate issued by the Ordinance Factory that the goods are exempted from all taxes. Notice also alleged that the goods were described as swarf were not scrap within the meaning of Heading 7404.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of Notification No. 172/84. However, such scrap is deemed to be duty paid for the purpose of Notification No. 178/88, as was clarified to the assessee by the Asstt. Collector in his letter dated 24-2-1993. Therefore, the goods are considered to be duty paid for the purpose of Modvat credit and hence assessee entitled to credit. This appeal is from this order. 5. I have heard both sides. 6. The reasoning in the Collector (Appeals) order is specious. Notification No. 172/84 exempts waste and scrap of copper from duty provided they are manufactured out of goods falling under Heading 7401 to 7410 or arises from goods under other sub-headings or Heading manufactured in India. Heading 7401 to 7410 are, essentially copper, eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit where no duty has been paid. Their purpose was to effect the benefit to the input on which duty has been actually paid but for which it might be difficult to produce duty paying documents. The Collector (Appeals)'s order ignores the basic requirement and cannot be accepted on this ground. 8. The assessee had, in reply to the notice, disputed that Notification No. 172/84 would apply to the goods contending that it had not been shown condition, out of which exemption was contained was fulfilled. However, the assessee took a different stand before the Collector (Appeals). That stand is recorded in para 3 of the order that the brass scrap received from the Ordinance Factory and cleared from the exemption Notification No. 172/84 is dee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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