AUSTIN CIRCUITS LTD., BHOPAL Vs. CCE, BHOPAL

JUDGEMENT

(1.) This application is for waiver of pre -deposit duty amount of Rs.67,044/ - and penalty amount of Rs.1,000/ -.

(2.) I have examined the records and heard both sides. The applicants had taken Modvat credit to the extent of Rs.87,044/ - on imported inputs on the strength of Bill of Entry on 10.11.1995. The credit so taken was reversed by them on 23.05.1996 allegedly on oral advice received from the Departmental authorities. On 23.05.1996, the party took re -credit of the duty in their RG 23A Pt.II, allegedly on the strength of some order passed by Additional Commissioner of Central Excise in similar matters in favour of the party. The Department, by show cause notice (SCN), challenged the assessee's action. The party contested the Department's proposal for disallowing the credit. The Assistant Commissioner adjudicated the dispute and disallowed the entire credit and imposed penalty of Rs.1,000/ - on the assessees. The appeal filed against the Assistant Commissioner's order was rejected by the Commissioner (Appeals) without observing the principles of natural justice. The aggrieved party preferred appeal to this Tribunal and, this Tribunal remanded the matter to the lower appellate authority for de novo decision on the merits of the case, on condition that an amount of Rs.20,000/ - be deposited by the party under Section 35F of the Central Excise Act. The Commissioner (Appeals), pursuant to the remand order, passed order dated 25.07.2000 dismissing the assessee's appeal on merits. Hence the present appeal before the Tribunal and the present stay application.

(3.) I have heard both sides. Ld. Advocate for the applicants has reiterated the grounds of the present application and has submitted that the issue involved in the appeal is covered in favour of the assessee by the decision of the Tribunal in the case of Indo -American Electricals Ltd Vs Commissioner of C.Ex. Bolpur [1999 (108) E.L.T. 797] and has further pointed out that, though this case law was presented before the Commissioner (Appeals), he did not consider the same. In this view of the matter, ld. Counsel submits, the lower appellate authority ought to have remanded the matter to the adjudicating authority in the light of the Tribunal's decision in Indo -American Electricals (supra). He further submits that has financial condition of the applicants is very bad as evidenced by the 'profit and loss account' produced along with the present application and, therefore, complete waiver of pre -deposit of the outstanding duty amount and penalty amount should be granted.