9911796707
TMI Blog2006 (8) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... and merely because the Deputy General Manager was not attending the office, that would not be a sufficient ground for adjourning this matter. Moreover, the learned authorised representative is present and had handled the matter before the Commissioner. When informed that, no adjournment can be granted, he has assisted the Court by raising appropriate contentions after going through the record. 2. The appeal is directed against the order of the Commissioner (Appeals) allowing the appeal filed by the revenue by setting aside the Order-in-Original, by which the Assistant Commissioner, Central Excise had allowed the Modvat credit to the tune of Rs. 2,04,123/- in favour of the present appellant. 3. It appears from the record that the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their reply dated 21-11-03 and held that the goods in question were covered under the definition of capital goods and, therefore, the party was eligible for the credit in question. It appears that personal hearing was given and Shri Kailash Chandra, Joint Executive Manager (Excise) appeared and reiterated the submissions made in reply dated 21-11-03. The Assistant Commissioner simply decided the question about the case being covered by the definition of capital goods . In fact, the Tribunal while remanding the matter had already held that most of the items were eligible to Modvat credit as capital goods and that the dispute was regarding nature of use of some of these items. 5. The learned authorised representative for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avail Modvat credit as claimed. He pointed out from the order of the Commissioner (Appeals) that during hearing, Shri A.K. Jain and Shri Kailash Chandra, were asked to provide consumption records and assets generated from the inputs as shown in their accounts but the assessee failed to provide any evidence on the manner in which these goods were used. 7. It is evident from the show cause notice that the only allegation made in respect of the goods for which Modvat credit was claimed was that they were not capital goods. This aspect is by now given a complete go by, by proceeding on the footing that they may be capital goods under the provisions of item 5 of Column 3 of the table below of Rule 57Q(1) of the said Rules. The emphasis is shi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision under Rule 57Q, has chosen to decide the matter finally by holding that the appellant did not provide any evidence of the manner in which these goods were used. The Commissioner also did not consider the information which was furnished by the appellant in their reply dated 21-11-03. If any evidence was required despite the fact that there was no allegation in the show cause notice challenging the user of the goods, then the appellant ought to have been put to notice for furnishing particulars which were needed, and it was incumbent on the Assistant Commissioner, in view of the directions given by the Tribunal, to have taken such evidence on record and decide the question of the user of goods as per the directions of the Tribunal. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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