Customs, Excise and Gold Tribunal - Delhi
Garrison Polysacks Ltd. vs Commissioner Of C. Ex., Vadodara on 29 January, 2002
Equivalent citations: 2002(143)ELT575(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. Heard.
2. The appellants have filed the Misc. Application seeking recall of the Stay Order No. S/646/2001/NB-D, dated 22-11-2001 vide which their stay application was decided ex parte on the ground that the Counsel could not put up appearance.
3. We have gone through the application and heard both the sides. For the reasons mentioned in the application, we find that it is a fit case to recall the stay order dated 22-11-2001 vide which the stay application of the appellants was dismissed without going into the merits of the case on account of their non-appearance.
5. The Misc. Application, therefore, stands allowed.
6. With the consent of both the sides, we proceed to hear the stay application.
7. Through this stay application, the appellants have sought waiver of pre-deposit of the duty amount of Rs. 11,09,313/- which had been confirmed on them through the impugned order-in-appeal dated 10-4-2001 by the Commissioner (Appeals).
8. While arguing the stay application, the learned Counsel has contended that the Modvat credit had been wrongly disallowed to the appellants as they were entitled to the same, though being job workers, as they were to be treated as manufacturers as the goods were directly received by them, though the invoices were in the name of supplier M/s. Gujarat Ambuja Cement. To support his contention, the learned Counsel has referred to the Board's Circular No. 146/57/95-CX, dated 12-9-1995 and argued that this Board's Circular, allows the job workers to take the Modvat credit when the invoice had been issued under Rule 52A containing, in addition to the prescribed details, registered person's name and address, and on account of whose instructions the goods have been despatched and that the consignees in such a case will be the end user (job workers). Therefore, the impugned order of the Commissioner is, prima facie, invalid and, as such, the total waiver of the pre-deposit of duty amount deserves to be allowed.
9. On the other hand, the learned SDR has reiterated the correctness of the impugned order of the Commissioner (Appeals).
10. We have heard both the sides and gone through the facts on record. The Modvat credit had been disallowed to the appellants as the invoices of the inputs were not in their names but were in the name of M/s. Gujarat Ambuja Cement who is said to have supplied those inputs to them for manufacturing the final products. The question, as to whether they are entitled to take the benefit of the Board's Circular No. 146/57/95-CX, dated 12-9-1995 and 211/45/96-CX, dated 14-5-1996, requires close scrutiny of the facts and material on record. The Commissioner (Appeals) has recorded detailed reasons while confirming the order-in-original of the Asstt. Commissioner, disallowing the Modvat credit to the appellants. At this stage, prima facie, we do not find any sufficient ground to disagree with his reasonings. Therefore, no strong prima facie case is made out in favour of the appellants for allowing their stay application unconditionally.
110. However, in the facts and circumstances of the case and the issue involved, we direct the appellants to make pre-deposit of Rs. 5 lakhs (Rupees five lakhs only) on or before 28-2-2002. On making this deposit, the requirement to pre-deposit the balance duty amount shall stand waived and recovery stayed till the disposal of the appeal. However, it is made clear that if the terms of this stay order are not complied with within the stipulated period, then their appeal shall become liable to be dismissed under Section 35F of the Act without any further reference to them.
11. To come up for reporting the compliance and further orders on 5-3-2002.