CCE Vs. KOTHARI SUGARS & CHEMICALS LTD.

JUDGEMENT

(1.) The appeal filed by Revenue is directed against the Order -in -Appeal No. 7/2002 -TRY (C.EX) (PNV) dated 8.3.2002, by which the learned Commissioner (Appeals) has set aside the order passed by the lower authority and allowed the appeal of the respondent -assessee and held that all these items are 'capital goods' under the erstwhile Rule 57Q of Central Excise Rules, 1944. While setting aside the order of the adjudicating authority, the learned Commissioner has relied on the judgment rendered by the Tribunal in the case of Simbholi Sugar Mills Ltd. v. Commissioner, 2001 (135) ELT 1239 (Tri -Del.).

(2.) While reiterating the grounds made in the appeal memo filed by Revenue, Ld. DR. Shri C. Mani argues that the Apex Court has admitted the appeal filed by Revenue against the Tribunal's decision in the case of Simbholi Sugar Mills Ltd. v. Commr. (supra) by condoning the delay vide its order dated 10.12.2001 in l.A. Nos. 1 -2 and 3 -4 in Civil Appeal No. D -6560 of 2000. He, therefore, submitted that the order passed by the learned Commissioner deserves to be set aside and the order passed by the lower authority may be restored.

(3.) None appeared for the respondent -assessee. However, they have filed a letter today and have submitted that the said capital goods viz. Check plate, Plate, Channels and Frame support were used for making operating platform around "continuous pan", and the same is used to periodically check the boiling point of the syrup in the "continuous pan" in the sugar plant. Unless the platforms are available, it is not possible for the production personnel to understand the condition of the boiling syrup in the pan and regulate the processing parameters accordingly. They have, therefore, submitted that the materials used for the aforesaid platform would qualify for the benefit of Modvat credit under Rules 570 of C.Ex. Rules, 1944. Hence, they have requested that their case may be decided on merits based on the above explanation.