BANSALI ENGINEERING POLYMERS Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) THESE are two ROM applications - one filed by the assessee and the other filed by the Revenue. There is one reference application also filed by the Revenue stating that a point of law arises out of the decision of this Tribunal contained in its Final Order No. A/546/98 -NB, dated 10 -7 -98 [1999 (105) E.L.T. 213 (T)].

(2.) WE have heard the arguments adduced by Shri J.P. Kaushik, ld. Counsel for the appellant/assessee and Shri S. Srivastava ld. DR appearing for the Revenue.

(3.) THE assessee's counsel submits that while arguing the case before the Tribunal, he had specifically stated that penalty was not warranted and had cited the case law reported in [1997 (96) E.L.T. 398 (T) = 1997 (22) RLT 551] in which the Tribunal had held that "in the background of what we have held above, I hold that the benefit of Modvat credit as held by the Bench in the case of Humidifire Unit available for the airconditioners. The appeal of the Revenue is therefore, allowed in the above terms. The order of the adjudicating authority is restored as prayed for. In the facts and circumstances of the case, I hold no penalty was warranted as the question of Modvat credit involve the interpretation of the definition of the capital goods under Rule 57Q and no mala fides can be attributed to the respondents in this regard. I therefore, upheld the order of the ld. Lower authority so far as the setting aside of the order of penalty is concerned". Ld. Counsel further submitted that the Tribunal again in the case of Madras Cement Ltd, v. CCE, Hyderabad reported in 1998 (99) E.L.T. 395 (T) = 1997 (23) RLT 855 held "so far as the levy of penalty is concerned, since the question involved relate to eligibility or otherwise of the Modvat credit, we observe, in the facts and circumstances of this case, the penalty levied was not warranted and we therefore, set aside the order of the lower authorities in this regard." Ld. Counsel submitted that in view of these two judgments of the Tribunal and in view of the fact that the issue of imposition of penalty was contested in the appeal, no order was passed by the Tribunal on the issue. He therefore, prayed that the order of the Tribunal may be rectified.