Customs, Excise and Gold Tribunal - Mumbai
Basant Rubber Factory Ltd. vs Commissioner Of Central Excise on 23 June, 2003
ORDER
Jyoti Balasundaram, Member (Judicial)
1. The application for waiver of pre-deposit of duty of Rs. 26,61,570/- and a penalty of equivalent amount arises out of the order of Commissioner, Central Excise, Mumbai. The duty demand has been confirmed as a result of holding that the applicant had availed Modvat credit on Hot/Cold Rolled sheets and coils on the strength of the invoices issued by the registered dealers without actual receipt of the goods. It is found that in certain cases there is a difference in the thickness of the goods mentioned in the manufacturer's invoice and the thickness shown in the delivery challan on actual receipt and the purchase invoice. It is the submission prima facie of the applicant that goods were actually received from the registered dealers and used by them in the manufacture of iron and steel products supplied exclusively to Indian Railways, and it is not the case of the department that the Indian Railways who had placed orders for such goods had not received goods as per specific purchase orders. He submits that although there is discrepancy in thickness between purchase invoice and the delivery challan the receipt of goods by the applicant and use thereof of iron and steel products and cleared as per specific purchase order to the Railways, is not in dispute. In these circumstances, he submits that the demand is prima facie unsustainable and the requirement of pre-deposit of duty and penalty may be waived.
2. Ld. DR points out that as per purchase order of the Indian Railways, the thickness of the product is different and it is not possible to manufacture iron & steel products under the Railways orders using inputs of thickness received by the applicants under the delivery challan issued by the registered dealer of the manufacturer. He therefore prays that the applicant may be directed to deposit entire duty and penalty.
3. On careful consideration of the rival submissions and noting that inputs were received in the factory of the applicants and applicant had placed before us documents evidencing supplies of such goods to railways which has confirmed their receipt prima facie, we waive the requirement of pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
(Dictated in Open Court)