Customs, Excise and Gold Tribunal - Delhi
Kusum Ingots And Alloys Ltd. vs Collector Of Central Excise on 8 April, 1999
Equivalent citations: 1999(113)ELT175(TRI-DEL)
ORDER Jyoti Balasundaram, Member (J)
1. In the above cases, the Assistant Collector of Central Excise has denied Modvat credit on the strength of invoices which were issued before six months from the date of credit, since as per the proviso to Sub-rule 2 of Rule 57G, a manufacturer can take credit only within six months from the date of issue of such invoices. The lower appellate authority had directed the applicants to deposit the duty amount as a condition for hearing of their appeals and upon their failure to do so, he has rejected the appeals for non-compliance with the statutory requirement of Section 35F of the Central Excise Act, 1944.
2. Learned Counsel for *:he applicants, Ms. Nisha Bagchi submits that it had already been brought to the notice of the Commissioner (Appeals) that the applicants' company was a sick company registered under the provisions of Sick Industrial Companies Act, with the BIFR and that, therefore, they were not in a position to comply with the requirement of pre-deposit. Learned SDR, Shri Satnam Singh opposes the grant of waiver submitting that all aspects had been considered by the Commissioner (Appeals) before directing the applicants to pay the amount and the automatic result of non-compliance, was the rejection of the appeals which was the proper action in the eye of law. He further submits that since there is no decision on merits by the lower appellate authority, the applicants have not made out any case for waiver, let alone a prima facie case and, he, therefore, prays that the entire amount of duty adjudged may be directed to be deposited by the applicants.
3. We have considered the submissions of both sides. While agreeing with the contention of the learned DR that all aspects of hardship had been gone into by the Commissioner (Appeals) at the time of passing an order under Section 35F of the Central Excise Act and that the applicants had no option but to comply with the requirement of Stay Order passed by the Commissioner (Appeals), we note that the issue as to whether credit can be taken on the strength of invoices issued before the date of amendment to Rule 57G is the subject matter before a Larger Bench to whom the issue has been referred in the case of Parasurampuria Synthetics Ltd. v. Collector of Central Excise, Jaipur (E/697/98-NB) on 17-3-1999. The reference to the Larger Bench has been made after noting the conflict of decisions in the Tribunal viz. decision in the case of National Steel Industries v. C.C.E., Indore reported in 1999 (31) RLT 191 and in the case of Osram Surya Pvt. Ltd. v. C.C.E., Indore reported in 1998 (29) RLT, 984 and other decisions. Since the very issue which is to be decided in the present cases has already been referred to a Larger Bench as noted above, we deem this to be a fit case for grant of waiver of pre-deposit of duty and penalty and stay recovery during the pendency of the appeals and we order accordingly. The file is also to be put up to the Hon'ble President for reference to a Larger Bench along with E/697/98-NB.