COMMISSIONER OF CHANDIGARH Vs. OSWAL ALLOYS

JUDGEMENT

(1.) COMMISSIONER of Central Excise, Chandigarh has filed a reference application under Section 35 G(1) of the Central Excise Act, 1944 praying for referring the following question of law which according to the Applicant, has arisen out of the Tribunal's Final Order No. A/567/98 -NB (DB), dated 10 -7 -1998. The Commissioner has formulated the following point of law : -

(2.) VIDE the Final Order referred to in the Reference Application, the Tribunal had allowed the appeal filed by M/s. Oswal Alloys against the Or -der -in -Original, dated 9 -8 -1995 passed by the Commissioner of Central Excise, Chandigarh denying the Modvat credit to the appellants on the ground that it was for the assessee to show that in terms of Notification No. 208/83 as amended by Notification No. 54/86, dated 10 -2 -1986 waste and scrap purchased by the assessee from the open market had fulfilled the conditions of the said Notification. The Tribunal had set aside the said order relying on its Larger Bench decision in Machine Builders v. C.C.E., [1996 (83) E.L.T. 576] and two other decisions holding that it was for the Department to produce evidence that the inputs in question were clearly recognisable as non -duty paid once the assessee takes a stand that it was coming within the category of goods which are duty paid.

(3.) THE Commissioner in the Reference Application has stated that the Tribunal decision in Nehar International Ltd. v. C.C.E. and Mahabir Spinning Mills v. C.C.E., which had been relied on by Tribunal in the Final Order have not been accepted by the Department and reference applications are pending decision before the CEGAT. The Commissioner has also stated that on this question of law, the Hon'ble Supreme Court has already admitted an appeal filed by the Commissioner, Chandigarh against the Tribunal's Final Order dated 8 -1 -1991 reported in 1996 (88) E.L.T. A/194 in the case of M/s. Prince Valve Industries.