TaxTMI 
TaxTMI 
2010 (2) TMI 421
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....as engaged in the manufacture of motor vehicle parts. The revenue claimed that during the relevant period form March 1988 to March 1994, the assessee wrongly availed/utilized the modvat credit, on deemed basis, on Aluminium Alloy Ingots, waste and scrap of Aluminium and waste and scrap of Zinc, which were clearly recognizable, as being non-duty paid or charged to Nil rate of duty. As such, assessee was not entitled for the Modvat credit on the inputs. Therefore, a show cause notice was issued, as to why the deemed credit be not recovered for it (assessee). 2. The assessee filed the reply, in which it was explained that according to Rule 57G(2) of Central Excise Rules, 1944, all stocks of inputs in the country except such stocks lying in ....
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....ssed by the Commissioner, Customs & Central Excise (A), Chandigarh, vide order dated 17-10-2002 (Annexure P2). 5. Still dissatisfied with the impugned orders (Annexures P1 and P2), the assessee filed the appeal before the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, which was accepted, vide impugned order dated 1-8-2003 (Annexure P3). 6. The revenue did not feel satisfied with the impugned order (Annexure P3) and filed the present appeal. 7. As is evident from the record, the Appellate Tribunal has negatived the claim of the revenue on the following grounds :- "For the early period, the benefit was allowed by the Commissioner (Appeals) and Revenue filed the appeal and the Tribunal vide Final Order No. A/896-1901/....
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....ion onus is on the Revenue to prove that scrap is clearly non-duty paid and this onus is not discharged by the Revenue. In view of the above decision of the Tribunal, the impugned order is set aside and the appeal is allowed." 8. Now the following substantial question of law arises for determination in this appeal :- "Whether the Tribunal was correct in holding that the onus was on revenue to prove that scrap coming into existence as a result of wear and tear of auto pistons. Broken metal containers, motor cycle parts etc. was clearly non-duty paid and this had not been discharged by the revenue when the Apex Court and Tribunal itself have consistently held that only the scrap generating during the process of manufacture was liable....
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....ts used by the assessee are recognizable as non-duty paid, so it is not entitled for the modvat credit. The assessee has stoutly denied the same. 13. The following question of law was under consideration in Ankur Steels Kukrouli's case (supra) :- "Whether the Hon'ble Tribunal was justified in holding that deemed credit as per letter F.No.Ts/36/94-TRU, dated 1-3-94 can be denied on the ground that the inputs (re-rollable material like old and used rails, wheels, crossties, sleepers etc.) were clearly recognizable as non-duty paid when the deemed credit order dated 1-3-94 did not contain such a clause (stipulation)." 14. Possibly, no one can dispute about the observations of Allahabad High Court in Ankur Steels Kukrouli's case (supra....