TaxTMI 
TaxTMI 
2013 (2) TMI 141
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.... to see that in law and in facts there is a presumption that all stocks of aluminium lying in the country are duty paid, such duty having been paid by the original manufacturer when the aluminium came into existence in the market for the first time ? iii. Whether the CESTAT was right in denying the MODVAT credit to the appellant merely on the ground that they had received the same from the supplier, who has not availed the benefit of any exemption, whereas any other assessee, who even purchases the aluminium from a trader was entitled to the benefit of the deemed credit and whether such a gross discrimination between availment of deemed credit on stocks procured from a trader without duty paying document and procuring the stocks from a supplier, who had not availed the benefit of any exemption Notification was permissible ? iv. Whether the CESTAT was right in confirming the order of the Lower Authorities which had transgressed the order of remand dated 2.2.1996 passed 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 Not....
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....he deemed credit from 20.5.1988, exemption under Notification No.100/88 was conditional and yet, there was no evidence that the ingots were manufactured from out of non-duty paid goods. Thus, for the period 20.5.1988 to 12.9.1988, the matter was remanded for de novo enquiry. 4. Aggrieved by this, the Revenue went on appeal before the CEGAT that the letter issued by the supplier Indica Metal Trading Company on aluminium alloy ingots showed that what was cleared by them were non-duty paid item only and hence, in the absence of evidence to show that they were manufactured out of duty paid aluminium, the benefit of the notification could not be granted. On its part, the assessee filed cross objection and contended that in the light of the findings by the Appellate Authority, the relief should have been granted by the Appellate Authority itself for the period from 20.5.1988 to 12.9.1988. 5. It is further seen from the records that for the period 20.5.1988 to 12.9.1988, on a fresh enquiry, 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 R....
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....nufacturer of the inputs had satisfied the condition and availed the exemption. The Tribunal found that whatever stated in the cross examination was not a gospel truth to be accepted without critical examination. It further pointed out that there was no evidence that they had paid duty and as the manufacturers were not entitled to exemption, they should have paid duty. Since the raw materials were non-duty paid, the assessee was not entitled to deemed credit. In the circumstances, the claim of the appellant was rejected. Aggrieved by this, the present appeal has been filed. 9. Learned counsel appearing for the appellant pointed out that in the course of the appeal proceedings, the Commissioner of Appeals pointed out in paragraph 12 that from the case records, he found that the supplier himself has stated in letters dated 6.2.1991 and 7.2.1991 that they had availed the exemption under Notification No.100/88, which was superseded by Notification No.180/88. According to the learned counsel for the appellant, there 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....
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....the same factory or any factory in India." 13. The said Notification was superseded under Notification No.180/88 dated 13.5.1988, which 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 Notification of the Government of India in the Ministry of Finance (Department of Revenue) No.100/88-Central Excises, dated the 1st March 1988, the Central Government hereby exempts goods of the description specified in column 3 of the table hereto annexed and falling under Heading Nos. Or Sub. Heading Nos. Of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), as are specified in the corresponding entry in column 2 of the said table, from so much of the duty of excise leviable thereon which is specified in the said Schedule, as is in excess of the amount calculated at the rate specified in the corresponding entry in column 4 of the said table subject to the condition, if any, laid down in the corresponding entry in column thereof. 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 alumi....