BHOPAL ENGINEERING Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) In an earlier appeal filed by the same party, there was an interim order of this Tribunal directing the appellants under Section 35F of the Central Excise Act to pre -deposit an amount of Rs. 28,287/ -. Purporting to act in pursuance of that order, the party reversed credit of the aforesaid amount in their Modvat account viz. RG 23A Part -II. When the matter came up before the Bench for report of compliance, the Bench did not accept the reversal of credit in the Modvat account as proper compliance with the aforesaid order under Section 35F. The Bench, therefore, dismissed the appeal for non -compliance with Section 35F vide Final Order No. A/765/95 -NB, dated 22 -9 -1995. On 23 -1 -1996, the appellants filed a letter with this Tribunal informing that they had debited an amount of Rs. 28,287/ - in their PLA so as to comply with the earlier order for pre -deposit of the amount under Section 35F. By that time, they had also filed an application for restoration of the appeal. That application was disposed of by the Bench as per Misc. Order dated 25 -3 -1996, whereby the Bench, in view of the consistent practice of the Tribunal, accepted the assessee's reversal of credit in RG 23A, Part -II as due compliance with Section 35F, recalled the above final order dated 22 -9 -1995 and ordered restoration of the appeal. That Appeal No. E/1055/95 -NB is pending since then. It appears from the record that the cause of action for the present appeal has arisen from the appellant's own conduct of having taken re -credit of the reversed credit of Rs. 28,287/ - in the RG 23A Part -II pending Appeal No. 1055/95. Such re -credit was taken on 2 -7 -1996 without prior intimation to the proper officer of the department, nor with the leave of this Tribunal in Appeal No. E/1055/95 -NB. The department, by show cause notice, challenged the action of the assessee and asked them to reverse the credit. The departmental action was resisted by the party. The jurisdictional Asstt. Commissioner, in adjudication of the dispute, confirmed the demand of Rs. 28,287/ - and directed payment thereof with interest and also imposed a penalty of Rs. 250/ - on the assessee. The appeal preferred by the party against the order of adjudication was rejected by the Commissioner (Appeals). Hence the present appeal.

(2.) Ld. Advocate, Shri Nand Kishore for the appellants, reiterates the grounds of the appeal and submits that there has been double payment of duty, one by way of reversal in RG 23A Part -II and the other by way of debit in PLA. He submits that the appellants are entitled to get back one of the two. Ld. Counsel submits that both the payments had been made in pursuance of interim directions of this Tribunal. The PLA debit could be maintained for purposes of Section 35F in Appeal No. 1055/95 and the Modvat re -credit in RG 23A Part -II be approved in the present appeal. Counsel submits that, in the facts and circumstances of the case, it is only just and proper that the impugned proceedings of the department for recovery of the Modvat credit be set aside.

(3.) Ld. SDR, Shri S.C. Pushkarna opposes the above prayer on the strength of the findings of the adjudicating and first appellate authorities.