2003 (10) TMI 417

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..... ded that no evidence whatsoever has been brought on record to prove the use of the ramming mass by the respondents in or in relation to the manufacture of the final product in the factory. In reply to the show cause notice, they had nowhere even disclosed the use. Therefore, the Modvat credit could not be allowed. On the other hand, the learned Counsel for the respondents has heavily leaned on the decisions of the Tribunal as well as the Apex Court to contend that any article brought in the factory by the manufacturer and used in or in relation to the manufacture of the final product has to be treated as an input or capital good for allowing the Modvat credit. The learned Counsel has referred to the following decisions - (i) M/s. .....

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..... e above referred cases that the ramming mass or any other goods brought in the factory by the manufacturer, if used in or in relation to the manufacture of the final products, would be eligible for Modvat credit either as input or capital goods, as the case may be. But it has to be established and proved by the manufacturer before claiming the Modvat credit in respect of any item that it had been used in or in relation to the manufacture of the final product. He has to disclose the manner and the mode in which a particular item had been used by him in or in relation to the manufacture of the final product. Without establishing this fact, he cannot claim the modvat credit of any item as of right by simply relying upon the ratio of the law la .....

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..... n the light of the discussion made above, in my view no benefit of the ratio of the law laid down in the above referred cases can be availed by the respondents. The adjudicating authority had disallowed the Modvat credit to the respondents on the item in question by holding it to be not covered as input under Rule 57A of the Rules. The Commissioner (Appeals) has reversed that order, as observed above, without going into the question of actual user of this item in or in relation to the manufacture of the final product. Therefore, the impugned order passed by the Commissioner (Appeals) cannot be sustained. However, in the interest of justice, the matter is sent back to the Commissioner (Appeals) to re-examine the issue of availability of Modv .....

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