TMI Blog2015 (8) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... is claim, was attracted on the basis of the aforesaid two notifications dated 13.07.1992 and 01.03.1994 coupled with Rule 57G(2) of the Rules. That aspect, we find, has not even been touched upon or dealt with by the Commissioner. Same error, we find, is in the order of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'CEGAT') where appeal was preferred by the appellant against the order of the Commissioner and the CEGAT also dismissed the appeal observing that the appellant had not paid any duty at the time of purchase of the material from the Railways. The High Court vide the impugned judgment has dismissed the appeal of the appellant and while doing so, it has again fell into the same error as was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale, the appellant faced excise duty thereupon. However, the appellant wants MODVAT credit of the duty which was already paid by the Railways on the rods, wheels, fish plates, etc., when the Railways initially purchased the same and which the Railways sold to the appellant after using the said products for a number of years. It is also a matter of record that at the time of purchase of the discarded rods, wheels, fish plates, etc., from the Railways in auction, the appellant did not pay any excise duty. As pointed out above, the appellant wants credit of the excise duty which was paid by the Railways when they originally purchased the aforesaid material. The question, therefore, that arises for consideration on the aforesaid facts is as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of excise was imposed on any inputs, the position of demand and supply of the said inputs in the country and any other relevant considerations, the Central Government may direct that with effect from a specified date, all stocks of the said inputs in the country, except such stocks lying in a factory, customs area [as defined in the Customs Act, 1962 (52 of 1962)] or a warehouse as are clearly recognisable as being non-duty paid, may be deemed to be duty-paid and credit of duty in respect of the said inputs may be allowed at such rate and subject to such conditions as the Central Government may direct, without production of documents evidencing the payment of duty: Provided also that the manufacturer shall take all reasonable steps to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chased from outside and lying in stock on or after the 07th day of July, 1992 with the re-rollers may be deemed to have paid duty at the rate of ₹ 920/- per tonne, and the credit of duty under Rule 57A of the said rules in respect of such ingots and re-rollable materials used, without undergoing the process of melting, is allowed at the aforesaid rate, i.e., at the rate of ₹ 920/- per tonne. Notification dated 01.03.1994 is also issued in exercise of powers conferred under second proviso to Rule 57G(2) of the Rules, as per which in respect of the same very material, viz., ingots and re-rollable materials of iron and steel purchased from outside and lying in stock on or after 01.04.1994, it is again deemed that duty has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a presumption that duty was paid unless the Department is able to show that the Railways was exempt from payment of excise duty. In support of this legal proposition, the adjudicating authority, referred to the judgment of this Court in the case of 'Collector of Customs v. K. Mohan Co.' [ 1989 (43) ELT 811 (SC)]. The adjudicating authority thereafter applied the aforesaid notifications dated 13.07.1992 and 01.03.1994 and held that in these circumstances, the deeming provisions contained in those notifications would get attracted and the appellant shall be entitled to the MODVAT credit at the rate of ₹ 920/- per tonne which is the rate specified in the said notifications. Not satisfied with this outcome, the Revenue prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old (Control) Appellate Tribunal (hereinafter referred to as 'CEGAT') where appeal was preferred by the appellant against the order of the Commissioner and the CEGAT also dismissed the appeal observing that the appellant had not paid any duty at the time of purchase of the material from the Railways. The appellant had challenged the order of the CEGAT before the High Court of Allahabad. The High Court vide the impugned judgment has dismissed the appeal of the appellant and while doing so, it has again fell into the same error as was committed by the CEGAT or the Commissioner, viz., denying the deemed MODVAT credit to the appellant on the ground that the appellant had not paid duty on the unserviceable raw material. We find fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
