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TMI Blog2013 (2) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on its face value and further, in the absence of any letters from the supplier alleged to have been written and which were relied upon by the Appellate Authority to disallow the claim, no justifiable ground to uphold the finding of the Tribunal that the assessee was not entitled to the benefit of exemption. As rightly pointed out by appellant, when the very basis of the Adjudicating Authority's order is not there, the Tribunal's order thereby suffers a serious infirmity in law, which calls for an interference by this Court. The Tribunal, in its order clearly pointed out that in the cross examination, no doubt Mr.Anser Basha of M/s.B.S.Metal Mart stated that they had not availed any exemption. Commenting on the reliance placed by the assessee on this answer given by the supplier, the Tribunal pointed out that the Adjudicating Authority had given a very well reasoned order. As already pointed out, if the Department felt that the statement of the supplier was not reliable, nothing prevented it from going in for a further enquiry into the matter. In fact, as pointed out by appellant, the registers pertaining to the suppliers were very much available before the Revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Larger Bench of the Tribunal ? v. Whether the CESTAT committed a fundamental error in disregarding the evidence given by the supplier himself, that they had not availed the benefit of any exemption Notification, by placing a most untenable interpretation that the evidence of the supplier was not 'gospel truth' that too in the absence of any cross examination by the Department ? vi. Whether the order of the CESTAT committed a manifest error by going into issues which were not the subject matter of the Larger Bench's order of remand and in this connection whether the CESTAT failed to see that the order of remand of the Larger Bench was a limited remand and not an open remand ?" 2. It is seen from the facts that the appellant herein is a manufacturer of automobile pistons, gudgeon pins and piston rings from unwrought aluminium alloy ingots, unwrought aluminium ingots, unwrought aluminium castings procured from smelters, who manufactured the same from the duty paid aluminium. The assessee availed of MODVAT credit on imports such as aluminium ingots, aluminium castings, aluminium alloy ingots etc., in terms of Sub Rule (2) of Rule 57(G) of the Central Excise Rules, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry, once again, an order was passed on 10.5.1994, negativing the claim of the assessee. This led to the filing of the appeal before the Collector. 6. The appeal filed by the Revenue for the period 1.3.1988 to 19.5.1988 before the Tribunal came up for consideration in the meanwhile. Pointing out to Notification No.100/88, the Tribunal, in its order in No.A/315-323/96-NB dated 2.2.1996 in Appeal E190/90, held that the exemption was a conditional exemption. The question whether the manufacturer of the inputs satisfied the condition on duty payment had to be investigated. If the manufacturer satisfied the condition and availed of the exemption, then the inputs had to be regarded as wholly exempted from duty and as such, clearly recognisable as being non-duty paid or charged to nil rate of duty and the assessee would not be entitled to deemed credit from 1.3.1988 to 19.3.1988 and 20.5.1988 to 12.9.1988. If the manufacturer did not avail of any benefit of exemption, the assessee would be entitled to deemed credit. Thus, the Tribunal remanded the case and allowed the Department's appeal. Thus, following the said order, the first Appellate Authority once again remanded the matter fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are no such letters and nothing was available on record. 10. Considering the specific question raised as to the existence of these letters and the denial that there are no such letters, this Court directed the learned Standing Counsel to ascertain from the Office of the Commissioner of Appeals as to the availability of these letters dated 6.2.1991 and 7.2.1991, addressed by the supplier. By letter dated 14.12.2012, the Deputy Commissioner, addressed to the Superintendent of Central Excise, Legal Section, Chennai II Commissionerate, and pointed out that the two letters are not available in the records and the assessee is not in possession of the said letters. 11. Thus, in the face of the above information on the alleged letters written by the supplier, the very basis of the order suffers a serious illegality. 12. Under Notification No.100/88 dated 1.3.1988, unwrought aluminium ingots alloyed or not and castings were wholly exempt from duty, if manufactured from goods falling under Chapter 76 or 83, if duty had been paid. The Notification reads as under: "In exercise of the powers conferred by Sub-Rule (1) of Rule 8 of the CER, 1944 and in supersession of the notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE TABLE S.No. Heading Nos/Sub Heading Nos. Description of Goods Rate Conditions (1) (2) (3) (4) (5) 1 76.01 7616.90 Unwrought aluminium, whether or not alloyed and cast articles of aluminium NIL If manufactured from goods falling within Chapter 76 of the said schedule on which duty of excise leviable under the said schedule or the additional duty leviable under the Customs Tariff Act, 1975 (51 of 1975) as the case may be, has already been paid. Provided that in respect of goods, mentioned against Sl.Nos.1,5,6,10 and 11 of the said table, the exemption shall not be applicable if they are manufactured by producers who produce unwrought aluminium from Bauxite or alumina or both, whether in the same factory or any factory in India." 14. Except for omitting goods falling under Chapter 83 of the Schedule to the Central Excise Tariff Act, 1985 there is no substantive variation between Notification No.100/88 and Notification No.180/88. Thus, the purport of the Notification is that unwrought aluminium, whether alloyed or not and cast articles of aluminium, would be exempt from duty, if they are manufactured f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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