Eltron India Vs. Commissioner of Central Excise,

.....commissioner of central excise, mumbai-ii, made in order-in-original dated 22.10.1991. a show cause notice was issued charging the appellant that they had procured electrical resistance wires which is exclusively required and used in the manufacture of electric furnaces. however the appellant had utilised the modvat credit on the said input and utilised them for clearance for another product called fan guards. the rt12 for the period from 30.4.1986 to 25.4.1989 were duly assessed without any objection. the show cause notice was resisted and one of the points stressed by the assessee before the adjudicating authority is the supreme court decisions in the cases of kosan metal products and andaman timber industries. the adjudicating authority by the impugned order relies on the declarations filed by the assessee regarding inputs and final products and derives support for the same for confirmation of the demand. hence this appeal.2. shri biradar, learned counsel for the appellant, stresses the point that when the rt12 returns were assessed, the department cannot state that there has been willful evasion by the assessee. as against this, shri r.k. paradeshi, learned dr, strenuously argued that knowing full well that the final product was electric furnaces and the input was resistance wire, the appellant could not have utilised the same for the fan guards. therefore he states that there is a misutilisation of the modvat credit. the observation of the additional commissioner that the word "verification" has been mentioned in rt12 has to be seen in the light of admitted circumstances that there has been a provisional assessment and that the provisions of rule 9 and 49 has been followed.the department has not placed on record any evidence of insistence of the point in terms of rule 9 and 49. if that were to be so, if the case of the department is the provisional assessment the department ought to have put in a positive way when the assessment was finalised and only.....