KAUSHAL INDUSTRIES Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THE issues involved for determination in the above appeal are (a) eligibility to Modvat credit on the strength of invoices issued by SAIL which has been denied on the ground that the invoice does not contain the particulars of supplier/manufacturer of inputs as required under Notification 33/94, dated 4 -7 -1994 and (b) whether duty is payable on goods exported for which the assessees produced Form H certificate issued by the Sales Tax office. I am of the view that the appeal requires to be admitted for hearing.

(2.) THE stay application is now taken up for hearing. Credit of Rs. 7,770/ - has been disallowed on the ground that the SAIL invoice dated 7 -2 -1995 did not contain the details of supplier/manufacturer as required under Rule 57GG read with Notification No. 33/94 -C.E., dated 4 -7 -1994. It is seen from the copy of the invoice, which has been filed by the appellants, that the invoice covers different stock yards of SAIL and the goods have been received by the appellants from the stock yard of Steel Authority of India and the goods have been manufactured by Bhilai Steel Plant. The non -furnishing of this information separately even though it is contained in the invoice is not such a serious defect so as to warrant denial of this credit particularly in the absence of any dispute that these inputs were used by the appellants in the manufacture of final product. Prima facie, I am of the view that the appellants have made out a case for waiver of pre -deposit of this amount and stay of recovery thereof.

(3.) REGARDING the amount of Rs. 33,875/ -, I find that Rule 14A of the Central Excise Rules refers to AR 4, as the document required to establish the proof of export. In this case, since the appellants did not file the AR 4, the department has not accepted that 41 diesel engines on which the duty payable has been confirmed, were actually exported. The plea of the appellants that since they are SSI unit, they are exempt from filing AR 4 and they have filed another document Form H/certificate of export issued by -the Maharashtra Sales -tax authorities, is a plea that has to be gone into when the appeal is taken up for hearing. Keeping in view the submission of the learned DR that the appellants should have obtained the AR 4 filed by the Merchant Exporter (M/s. Eastman Industries Ltd.), I direct them to deposit Rs. 33,875/ - from the date of receipt of this order and on such deposit, the requirement of pre -deposit of penalty of Rs. 1,000/ - shall stand waived and recovery stayed during the pendency of the appeal. Failure to comply with this direction shall result in automatic vacation of stay and dismissal of appeal without prior notice. Matter to come up for compliance on 17th Sept. 1997.