LUPIN LABORATORIES LTD Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is an application filed by the appellants for dispensing with the requirement of pre -deposit of the duty amount of Rs. 2,84,900/ - and the penalty amount of Rs. 3 lakhs and for stay of recovery of these amounts during the pendency of the appeal. After having carefully examined the impugned order and connected records of the case and having heard the learned advocate Shri Shekhar Vyas for the applicants and learned JDR Shri Y.R. Kilania for the respondent -Revenue, I am convinced of the existence of a strong prima -facie case for allowing the application unconditionally. Accordingly the application is allowed unconditionally and having regard to the fact that the appeal can be disposed of at this stage, the appeal is taken up for final disposal.

(2.) TO summarise the facts of the appeal, the appellants are manufacturers of P or P medicaments and allied products and are availing the facility of modvat credit in respect of inputs and capital goods under Rules 57A and 57Q respectively of the Central Excise Rules, 1944. The appellants took modvat credit of the duty paid on certain inputs purchased from a 100% export oriented unit during December, 1997. This credit was taken at two stages. The credit of the additional duty of customs paid on the imported inputs, amounting to Rs. 2,56,410/ - was taken on 28 -6 -1997. Subsequently, the credit of the basic duty amounting to Rs. 2,59,000/ - and the special duty amounting to Rs. 25,900/ - [totalling to Rs. 2,84,900/ -] paid on the said, imported inputs was taken on 1 -12 -1997. The modvat credit which was taken at the second stage on 1 -12 -1997 amounting to Rs. 2,84,900/ - was dis -allowed by the jurisdictional Assistant Commissioner of Central Excise and a penalty of Rs. 3 lakhs was imposed on the party for alleged contravention of the Central Excise Rules. The appeal filed by the party against this order of the adjudicating authority was rejected by the Commissioner of Central Excise (Appeals) on the technical ground of non -compliance with the requirement of pre -deposit of the duty and penalty amounts under the proviso to Section 35F of the Central Excise Act, without going into the merits of the case. It is this order of the lower appellate authority that is taken before the Tribunal in appeal by the party at present.

(3.) I have heard the learned advocate and learned JDR on the merits of the appeal. It is submitted at the outset by the learned advocate that the issue involved in the case is one which has already been referred to a Larger Bench of the Tribunal as per miscellaneous order dated 17 -9 -1999 in the case of Kundalia Industries v. Commissioner of Central Excise, Delhi reported in 1999 (114) E.L.T. 763 (Tribunal). Nevertheless, having regard to the peculiar facts and circumstances of the present case, I think I can dispose of the appeal finally without considering the cited case law.