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TMI Blog2011 (7) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... nd upto 28.08.1986 - The Commissioner s impugned order has not given any finding that the Movat credit of Rs.10,83,763/- which has been denied, was in respect of the quantity of scrap which had actually been received in the factory after 28.08.1986 or before 28.08.1986 - Appeal is allowed by way of remand to adjudicating authority - 1233 of 2005 - 549/2011-EX(PB) - Dated:- 4-7-2011 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Rep. by none for the appellants. Rep. by Shri B.K. Singh, Jt. CDR for the respondent. Per Rakesh Kumar The facts leading to this appeal are as under:- 1.1 The appellant are manufacturer of iron and steel products of Chapter 72 of the Central Excise Tariff. They availed Modvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odes and credit of Rs.74,640/- was in respect of Ramming Mix Mortar. Sofar as the Modvat credit in respect of iron and steel scrap is concerned, the department was of the view that the same is not available to the appellant as the same is clearly recognisable as non-duty paid, for the reason that the same is exempt from duty under Notification No.208/83-CE. The department was also of the view that the Ramming Mix Mortar and Graphite Electrodes cannot be called input used in or in relation to the manufacture of the final products. It is in this background that a show cause notice dated 12.11.986 was issued to the appellant for recovery of Modvat credit of Rs.51,16,101.18. The show cause notice was adjudicated by the Commissioner vide Order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded that the Commissioner has rightly denied the deemed credit of Rs.10,83,763/- as this credit is in respect of the quantity of iron and steel scrap which had been received on or after 29.08.1986 when Deemed modvat credit facility had been withdrawn by the Government. 4. We have carefully considered the submissions of the learned Jt. CDR and have perused the records. In terms of the order dated 7.4.1986 issued by the Central Government under 2nd Proviso to Rule 57 G of the Central Excise Rules, 1944, inputs specified in Col. (2) of the table annexed to this order and falling under Heading of the Central Excise Tariff specified in the corresponding entry in Col.3 of the said table, purchased from outside and lying in stock on or after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been denied, had actually been received in their factory during the period prior to 29.08.1986 as is clear from the intimation regarding receipt of scrap given in D-3 format by them to the department at the time of each receipt and merely because the credit entries in the RG-23 Part-II Register were made on or after 29.08.1986, it cannot be concluded that the quantity had been received on or after 29.08.1986. The appellant s plea is that all the receipts of the iron and steel scrap were upto 28.08.1986, as the entries in the RG-23A Par-I Register have been made upto this date only. 5. In terms of the order dated 7.4.1986 issued by the Government under 2nd Proviso to Rule 57 G(2), Deemed modvat credit in respect of the specified goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en denied, was in respect of the quantity of scrap which had actually been received in the factory after 28.08.1986 or before 28.08.1986. In view of this, the matter has to be remanded to the adjudicating authority for specific finding as to whether the iron and steel scrap in respect of which Modvat credit has been denied, has actually been received in the factory prior to 29.08.1986, as evidenced by D-3 intimation and entries made in the RG-23A Part-I Register and other evidence, if any, regarding the actual date of receipt. If the receipt is during the period prior to 29.08.86, the deemed credit has to be allowed. 6. In view of the above discussion, the impugned order is set aside and the matter is remanded to the original adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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