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2013 (2) TMI 141 - HC - Central ExciseMODVAT credit on aluminium ingots denied - assessee had availed deemed credit - they had received the ignots from the supplier who has not availed the benefit of any exemption - Held that:- Notification in question No.100/88 dated 1.3.1988 is a conditional Notification, wherein the exemption is only subject to the satisfaction of the conditions stated therein on duty paid materials, falling under Chapter 76 or Chapter 83, being used in the manufacture of unwrought aluminium, whether or not alloyed. After the remand by the Tribunal, in the first instance, admittedly, the suppliers were examined by the Department and a right to cross-examination was given to the appellant. As seen in question No.18, the appellant herein cross-examined the supplier, which asked about availing any exemptions under the Central Excise during the relevant period to which he replied No thus in the face of such categorical statement made by the supplier and in the absence of any material produced by the Revenue to hold that such a statement could not be accepted 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 no efforts were taken to discredit any of those registers belonging to the suppliers. In the circumstances, no logic arises in the Tribunal raising a question as to why the supplier did not pay the duty and the answer given towards the end to such a question raised, seems to be a vague one, not supported by any material - set aside the order of the Tribunal, allow the civil miscellaneous appeal and hold that the appellant is entitled to the benefit of exemption.
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