Non-availment of Modvat credit can be proved by unrebutted evidence, not only a departmental certificate.

A notification condition requiring non-availment of Modvat credit was held not to mandate proof only by a certificate from the jurisdictional Central Excise authorities. The supporting manufacturer's certificate of non-availment, the absence of any rebuttal by the Revenue, and the fact that a request for a departmental certificate had gone unanswered were treated as sufficient prima facie evidence of compliance. The manufacturer's separate exemption status also supported the inference that credit was unlikely to have been taken. On that basis, denial of the notification benefit solely for want of a departmental certificate was not sustainable at the interim stage, and stay relief was granted.

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Issues: Whether the benefit under Notification No. 203/92-Cus. could be denied merely because the certificate regarding non-availment of input credit was not issued by the jurisdictional Central Excise authorities, and whether the supporting manufacturer's certificate and surrounding circumstances were sufficient to establish compliance with the notification.

Analysis: The notification condition required that no input Modvat credit should have been availed in respect of the exported goods, but it did not expressly stipulate that the proof of such non-availment had to be in the form of a certificate issued by Central Excise authorities. The supporting manufacturer had certified non-availment of credit, and that assertion was not rebutted by any contrary evidence from the Revenue. The record also showed that a request had been made to the jurisdictional Superintendent for issuance of the certificate, but no response was received. The fact that the supporting manufacturer was otherwise enjoying exemption under Notification No. 88/88-C.E. also supported the position that there was no occasion to avail Modvat credit.

Conclusion: The denial of benefit on the sole ground of absence of a certificate from the Central Excise authorities was not sustainable at the prima facie stage, and the appellant was entitled to stay relief.

Final Conclusion: The order recognizes compliance with the exemption condition on a prima facie basis and grants interim relief to the appellant.

Ratio Decidendi: Where a notification requires non-availment of credit but does not prescribe a particular certifying authority, compliance may be established by other unrebutted evidence of non-availment, and the benefit cannot be denied solely for want of a departmental certificate.

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