G.C.R Nos.18 & 7 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. G.C.R.No.18 of 2004 Commissioner of Central Excise, Chandigarh ...Petitioner Versus M/s Khalsa Charan Singh and Sons ...Respondent 2. G.C.R.No.7 of 2004 Commissioner of Central Excise, Chandigarh ...Petitioner Versus M/s Aarti Steels Limited ...Respondent Date of Decision:-19.3.2010 CORAM: HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.HPS Ghuman, Senior Standing Counsel for the petitioner. Mr.J.S.Toor, Advocate with Ms.Divya Godara, Advocate for the respondent. Mehinder Singh Sullar, J. As common question of law and facts are involved in both the aforementioned reference petitions, therefore, we propose to decide the same, vide this single judgment, in order to avoid the repetition. However, for facilitation, the facts have been extracted from GCR No.18 of 2004 titled as “Commissioner of Central Excise, Chandigarh Vs. Khalsa Charan Singh and sons”. 2. The matrix of facts, culminating in the commencement, relevant for disposal, of present reference petitions and emanating from the record is that the respondent-assessee M/s Khalsa Charan Singh and sons (for brevity “the assessee”) was dealing in old rollable material/re-rollable material and scrap. A show cause notice was issued to the assessee, proposing to deny proforma credit availed by it under the modvat scheme, on the ground that as the “old G.C.R Nos.18 & 7 of 2004 2 rollable material/re-rollable material and scrap” is not specified in the Government of India's Order No.B-22/5/86-TRU dated 7.4.1986, therefore, it (assessee) is not entitled to modvat credit without production of evidence of payment of duty. The Assistant Commissioner, Central Excise denied the proforma credit to the assessee, vide order dated 12.11.1987. The Commissioner (Appeals) also upheld the order of Adjudicating Authority, vide order dated 31.10.1988. 3. Aggrieved by the aforesaid orders, the assessee filed the appeal before the Customs, Excise & Service Tax Appellate Tribunal. While relying on its earlier Final Order No.E/14-24/98 dated 6.1.1998. The Tribunal accepted the appeal, vide order dated 21.1.1998, the operative part of which is reproduced as under:- “The Tribunal has noted that type of goods were such as were not clearly classifiable under any of the excluded hearings in Government of India's order dated 07.04.86. The Government of India's order clearly indicates that goods purchased from outside and lying in stock on or after 1986 with the manufacturer manufacturing final products specified in Notification 177/88 dated 01.03.88 are deemed to have paid the specified duty at the specified rate. The only exceptions to this presumption were that (i) duty payment would not be presumed in case credit of specified duty had already been availed of under any rule or notification, (ii) such inputs were clearly recognizable as non-duty paid or charged to nil rate of duty or (iii) inputs as such where reduction of duty as has been provided under notification no.55/86 dated 10.02.86 has been claimed and documentary evidence exist to show that reduced duty has been paid on such inputs. In such cases, only actual duty paid could be allowed. Revenue has not led any evidence to prove that these exceptions were attracted in the case of the impugned goods. Therefore, the burden of establishing duty paid character cannot be passed on to the Appellants herein. Further, the dispute of duty paid character of the goods has been raised by the Revenue and if the Revenue G.C.R Nos.18 & 7 of 2004 3 has any doubt about the duty paid character of the goods, the burden to prove so rests squarely on the Revenue. The Tribunal also observed that it was not the contention of the Revenue that the disputed goods were otherwise covered by a unconditional exemption in the sense that those were wholly exempted. It was also not the contention of the Revenue that the goods have actually come from the factory after availing exemption. In the present case, the goods have come from the dealers and the Revenue has not led any evidence that dealers obtained goods under exemption. In these circumstances, the onus is clearly on the department, since this onus has not been discharged, the burden of proving duty paid character cannot be passed on to the Appellants herein who have taken a definite stand in regard to nature of goods that they are of duty paid character.” 4. In the wake of order dated 25.3.2003 of this Court in Applications No.69 and 72/2002 (O&M), the Tribunal referred the following question of law for determination:- “Whether the burden of proving that the goods on which deemed modvat credit is claimed are duty paid, is on the department or on the assessee?” 5. We have heard the learned counsel for the parties and have gone through the records of the cases with their valuable assistance. 6. At the very outset, the celebrated argument of the learned counsel for the assessee that since the indicated goods were not specifically mentioned in the order dated 7.4.1986, so, the assessee cannot claim the modvat credit in this connection, is not only devoid of merit, but misplaced as well. On the contrary, relying upon the Board's instructions F.No.267/46/88-CX-8, dated 5.4.1988 and circular No.18/89 dated 6.6.1989, the contention of the assessee that burden of proof is on the revenue, in this regard, has considerable force. 7. It is not a matter of dispute that the assessee was dealing in old rollable material/re-rollable material and scrap and the indicated inputs purchased by it (assessee) were being used in the manufacturing of final G.C.R Nos.18 & 7 of 2004 4 products, at the relevant time. The Govt. of India's order dated 7.4.1986 clearly postulates that “any goods purchased from outside and lying in the stock on or after 1986 with the assessee manufacturing the final products specified in the Notification No.177/88 dated 1.3.1988, are deemed to have paid the specified duty at the specified rate. Therefore, the assessee would be deemed to have paid the specified duty at specified rate, as per order dated 7.4.1986 and notification dated 1.3.1988 and was thus entitled to avail the modvat credit, in this respect. 8. Possibly, it cannot be denied that there are certain exclusion clauses in the order dated 7.4.1986, such as, (i) duty payment would not be presumed in case credit of specified duty had already been availed of under any rule or notification, (ii) such inputs were clearly recognizable as non-duty paid or charged to nil rate of duty or (iii) inputs as such where reduction of duty as has been provided under notification no.55/86 dated 10.02.86 has been claimed and documentary evidence exist to show that reduced duty has been paid on such inputs. In such cases, only actual duty paid could be allowed. But, in that eventuality, the burden of proof was on the revenue to prove by producing cogent evidence on the basis of enquiry etc. that the goods of the assessee squarely fall in any of the exclusion clauses, in order to deny the benefit of modvat credit to it (assessee). 9. The argument of the learned counsel for the revenue that burden of proof, under such circumstances, was on the assessee, again has no force. The well settled basic principle of (evidence) burden of proof is that whosoever desires, any authority to give judgment as to any right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist and when a person is bound to prove the existence of any fact, it is said that burden of proof lies on that person and the burden of proof in the proceedings lies on that person, who would fail if no evidence at all was given on either side. As indicated earlier, the dispute of duty paid character of the goods has been raised by the revenue and if the revenue has any doubt about duty paid character of the goods, then the burden of proof so raised squarely lies on the revenue. G.C.R Nos.18 & 7 of 2004 5 10. As is evident from the order dated 7.4.1986 that the goods purchased from outside and lying in stock on or after 1986 with the assessee manufacturing the final products specified in the notification dated 1.3.1988, are deemed to have paid the specified duty at the specified rate. Hence, the assessee was entitled to avail modvat credit. If the department wanted to deny the statutory modvat credit to the assessee, then burden of proof was on it (department) to prove that the inputs used by the assessee in manufacturing the final products, fall within the purview of exclusion clauses of the said order, which is totally lacking in the present case. 11. Having considered almost a similar substantial question of law in Central Excise Appeal No.2 of 2004 titled “Commissioner of Central Excise Commissionerate, Jalandhar Vs. M/s Emdet Engineers Pvt. Ltd.” decided on 5.2.2010, this Court held as under:- “The natural corollary would automatically follow that in the case of conditional exemption, unless it is shown that all the conditions are satisfied, it cannot possibly be saith that the inputs are wholly exempted or are clearly recognizable, as not being duty paid or charged to Nil rate of duty. The revenue cannot possibly be heard to say that it is for the assessee to show that the conditions are satisfied, but in fact the revenue has failed to prove that the inputs used by the assessee are recognizable as not being duty paid or charged to Nil rate of duty. In that eventuality, the exemption already availed by the assessee must be regarded as having been rightly availed. Therefore, it is held that burden of proof was on the revenue to prove that the inputs used by the assessee were not being duty paid or charged to Nil rate of duty and in the absence of any cogent material on record in this relevant connection, the assessee cannot legally be denied the right to avail the facility of modvat credit.” 12. Likewise, the same view was reiterated by this Court in WTA No.17 of 2008 titled as Commissioner of Income-tax (Central), Ludhiana Vs. Smt.Neena Jain c/o M/s Sweety Fabrics (P) Ltd. decided on 19.2.2010. 13. Sequelly, in some what similar circumstances, Hon'ble Supreme G.C.R Nos.18 & 7 of 2004 6 Court in cases Collector of C.Ex. vs. Decent Dyeing Co. 1990 (45) E.L.T. 201 (SC) and Commissioner of Customs vs. Auto Ignition Ltd. 2008 (226) E.L.T. 14 (SC) has approved the view that onus of proof on availment of credit of duty paid character, is on the revenue and not on the assessee. The law laid down in the aforesaid judgments “mutatus-mutandi” is applicable to the present controversy and is the complete answer to the problem in hand. 14. In the light of the aforesaid reasons, it is held that the burden of proof that the goods on which deemed modvat credit is claimed, are duty paid, was on the revenue and not on the assessee. Therefore, the question is answered in favour of the assessee and against the revenue, in the obtaining circumstances of the case. ( Mehinder Singh Sullar) Judge (Ashutosh Mohunta) Judge 19.3.2010 AS Whether to be referred to reporter? Yes/No