HARDCASTLE AND WAUD MFG. CO. LTD Vs. CCE

JUDGEMENT

(1.) THE appellants and facts in both the cases are common and the impugned order is also of the same date. Hence both the matters are taken up together for consideration of the stay applications and the appeal with the consent of both the sides.

(2.) THE facts of the case are that the appellant is engaged in the manufacture of paints etc., for which various capital goods at Serial No. 1 to 9 mentioned in Para 3 of the appeal memorandum is required (E/244/99). The declaration was filed claiming modvat with the delay of 1 to 2 months. Show Cause Notice was issued on the ground that the declarations are filed after one month from the date of the receipt of the goods in the factory, also availed and utilised the mod -vat credit towards payment of duty on excisable goods manufactured and cleared by them. The demand was for Rs. 8,09,214/ - under the show cause notice dt. 25.1.1996 alleging contravention of Rule 57T(1), 57S(2) read with Rule 57Q of the Central Excise Rules and also for a penalty under Rule 173Q of the Central Excise Rules in E/244/99. In E/245/99 show cause notice was issued demanding Rs. 64,641/ - alleging that the goods on which modvat credit was taken in this case do not come within the definition of the capital goods as per the explanation appearing below Rule 157Q(1) (sic), and also on the count that the declaration was filed beyond 1 month from the period of receipt of the goods in the factory. The product covered are mentioned in item 1 to 5 in the order in original, such as container 1000 ltrs. Trolley, Electric Motors, Aluminium Cond. PVC. Armoured Cables. The personal penalty was also proposed under Rule 173Q. After the receipt of the reply in both the cases, and holding personal hearing, in which the party and the consultant was heard, which has resulted in the order in original confirming the demand in both the cases. Penalty of Rs. 5,000/ - was imposed in E/245/99 and penalty of Rs. 80,000/ - was imposed in E/244/99. The appeal; preferred against this order resulted in the dismissal of the same on the ground that the stay order passed in both the cases are not complied. Hence these appeals.

(3.) SHRI C.S. Lodha the learned Counsel appearing for the appellants has extensively argued on the merits of the case, with the request to decide the case on merits. The Ld. JDR Shri K.C. Agarwal has strongly urged that the impugned order is proper and correct and the appellant has no right of audience on the merits of the case, unless the stay order is complied which is pre -requisite under Section 35 -F of the Central Excise Act, 1944.