INSTRUMENTATION LTD. KOTA Vs. CCE, JAIPUR

JUDGEMENT

(1.) THIS application is for waiver of pre -deposit of over Rs.8 lakhs and for stay of recovery thereof, pending the appeal.

(2.) CAREFULLY examined the records and heard both sides. Ld. Advocate Shri Rajesh Kumar has pleaded for allowing the application and ld. JDR Shri A.K.Jain has opposed the same.

(3.) FOR giving any relief in terms of Section 35F of the Central Excise Act in the present application, it has to be settled first as to whether the application is maintainable or not. The maintainability of this application depends on the maintainability of the appeal itself. But the maintainability of the appeal stands unsettled by a decision of the Bangalore Bench of this Tribunal in the case of Wipro Ltd and Ors Vs CCE, Bangalore [2001 (43) RLT 317] wherein the Bench held that all appeals involving issues relating to Modvat credits sought to be recovered by the Department under the erstwhile Rules 57I and 57U of the Central Excise Rules should be considered to have lapsed on 01.04.2000 by reason of repeal of those rules w.e.f that date. In the present appeal, the issue relates to inputs -credit sought to be disallowed by the Departmental authorities under the erstwhile Rule 57I. The show -cause notice (SCN), from which the dispute originated, was issued prior to 01.04.2000. If the decision of the Bangalore Bench has to be followed, the present appeal cannot be maintained and consequently the present application also will not be maintainable. However, since this Bench has taken a view in the case of K.S.Chini Mills [appeal No.E/2032/97 -NB (SM)] that the correctness of the above decision in Wipro (Supra) is not free from doubt and has referred the issue to Larger Bench as per order dated 29.03.2001, the question whether the present appeal is maintainable can be settled only after the decision of the Larger Bench. The present application also can be considered on merits only thereafter. Such pendency, however, cannot be allowed to be prejudicial to the appellants. I am, therefore, inclined to exercise powers vested in this Tribunal under Rule 41 of the CEGAT (Procedure) Rules, 1982 for granting ad interim stay of recovery of duty till final disposal of this application. The question whether the applicants are entitled to waiver of pre -deposit under Section 35F must wait for the decision of the Larger Bench. I, therefore, post this application for hearing on the said question to 29.06.2001 and direct the Departmental authorities to refrain from recovery proceedings till final disposal of the application. (Dictated and pronounced in open court.)