JINDAL POLYESTER LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The application for waiver of pre -deposit of duty of Rs. 33,41,519/ - and penalty of Rs. 16,20,000/ - arises out of the order of the Commissioner of Central Excise (Appeals). Out of the total duty demand a sum of Rs. 31,27,674/ - represents modvat credit disallowed on the ground that the bills of entry on which credit was availed were not in the applicant's name, but in the name of their office situated at New Delhi and also been on the ground that the applicants have received part consignment out of the quantity mentioned in the said bill of entry and further for the reason that the triplicate copy of the bill of entry was not produced for verification. An amount of Rs. 1,67,554/ - represents modvat credit disallowed on the ground that it was availed on the final product while credit is admissible only on inputs. A further sum of Rs. 46,291/ - represents modvat credit disallowed on a bill of entry which did not contain customs declaration on its reverse which was the mandatory requirement as confirmation of CVD payment.

(2.) We have heard both sides. In the light of the Tribunal's order in the case of Larsen and Toubre Ltd. v. CCE, Bhubaneshwar 1994 (72) ELT 948 and STS Chemicals Ltd v. CCE, Pune 1999 (111) ELT 870 holding that credit cannot be denied on the sole ground that the bill of entry showed the address of another unit of the same manufacturer and in the light of the clear findings of Commissioner (Appeals) that the applicants did not avail of any excess credit and also noting that the triplicate bill of entry was produced before the Assistant Commissioner for verification, we hold that prima facie case for waiver of pre -deposit of Rs. 31,27,674/ - has been made out and we accordingly waive pre -deposit of this amount and stay recovery thereof pending the appeal. As for the other two amounts, the issues are debatable and hence we direct pre -deposit of Rs. 1,67,554/ - and Rs. 46,291/ - within eight weeks from today. On such deposit pre -deposit of the penalty amount shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in dismissal of appeal without prior notice.

(3.) Compliance to be reported on 18th May, 2004.