ORDER
S.L. Peeran, Member (J)
1. Both the stay applications and appeals raises common question of law and facts, hence they are taken up together for disposal as per law. The Commissioner (Appeals) has dismissed the appeals of the appellants solely on the ground that they have not pre-deposited the amounts as directed by him in the Interim orders in terms of the proviso to Section 35F of the Act.
2. By Order-in-Original dated 23.3.1998 the duty confirmed was Rs. 27,11,705/- with penalty of Rs. 5,00,000/-. The allegations were with regard to irregular availment of Modvat credit as the particulars in the Invoice were not verifiable and such invoices cannot be accepted. Also the issue is pertaining to 8 items on which the eligibility of Modvat was rejected. The Commissioner (Appeals) has held that the appellants were to pre-deposit the entire duty and penalty confirmed in the Order-in-Original for the purpose of hearing the appeal. The appellants had filed an application for modification of the Interim order which was also not considered and ultimately the appeal was dismissed for non-compliance and hence the stay application and the appeal.
3. Ld. Counsel has given split of figures with respect to duty demands and he submits that an amount of Rs. 13,42,172.00 arises in respect of invoices wherein the name of the appellants was held to be not found. Ld. Counsel displays the invoice and points out that the name of the appellant is shown as A/C Ennore Foundries Ltd. This is not even a procedural violation and the invoices are in terms of the Rules and hence Modvat credit cannot be rejected. As regards the amount of Rs. 1,14,338.00 the Modvat has been denied solely on the ground that the original invoice of IOC was utilised. Counsel points out that the table was also available and has been displayed and the Tribunal in the case of Bharat Battery Manufacturing Co. v. CCE as reported in 1997 (20) RLT 54 have held that invoices issued by IOC is acceptable as the same is a Public Sector Undertaking. He points out to the amount of Rs. 69,332/- wherein the Modvat credit was denied solely on the ground that the payment particulars are not clearly seen from the invoice issued by IOC. He points out that all the details were furnished and this also is not a procedural violation. As regards the confirmation of duty of Rs. 3,71,556/-, the Order-in-Original stated that documents had not been produced for verification. He submits that all the documents had been produced. There was a slight mix up. However, the documents were available for verification. As regards the confirmation of Rs. 7,53,708.00, the Modvat on 8 items have been rejected. He points out that Modvat credit is available in respect of the following items and the Tribunal has already decided the case holding that Modvat is eligible:
(1) Sealant (2) Spares for Milling
(3) Voltage Energy (4) Front Loader
(5) Welding Electrodes & (6) Transformer Oil.
he submits that the contest is only with regard to Bars, Plates, angles, pipes and wire rods and other steel items and Rubber Sheets. He submits that this is a contestable matter and the Modvat credit with regard to these items is only Rs. 4 lakhs which the appellants would be willing to deposit. He submits that the appellant company is already under loss of Rs. 11 crores. However, there is a turnover of Rs. 99 crores. Still, the appellants are facing financial hardship.
4. He points out that in Order-in-Appeal No. 44/99 dated 13.4.1999 Commissioner (Appeals) directed them to pre-deposit the entire amounts of payment to the extent of Rs. 1,68,304/-. He submits that Modvat was denied in respect of invoices issued by IOC. He points out that this was also covered by the cited Judgment and they were required to be granted.
5. Ld. S.D.R. points out to the detailed findings given by the Assistant Commissioner in the Order-in-Original and submits that Modvat credit was not available in terms of the findings given. She submits that Commissioner (Appeals) was justified in directing the appellants to pre-deposit the entire amounts including penalty and therefore they should pre-deposit the amounts before the appeal is considered.
6. On a careful consideration of the submission, we notice from the working sheet given that the dispute pertaining to the documents found to be not in order is absolutely a procedural violation. There is no dispute raised with regard to dutiability of the impugned items and the receipt thereof. The Tribunal has also held that Modvat is required to be extended in respect of invoices issued by IOC in the above noted Judgment as the IOC is a PSU unit. We have also seen the invoices and find that the name of Ennore Foundries is mentioned in the invoices. Taking into the overall facts and circumstances, we notice that in respect of the above four items and confirmation of demands thereof is lying within the aspect of procedural violation. As regards confirmation of the demands on the non availability of Modvat credit on the inputs indicated, we prima facie see that the issue is covered in respect of items indicated by Ld. Counsel. The aspect pertaining to Bars, Plates, Angles, Pipes and Wire Rods, other steel items etc. and rubber sheets is a highly contestable issue. Trie confirmation of duty here is Rs. 7,53,708/-. We hold it proper in the circumstances to direct the appellants to pre-deposit Rs. 7,00,000/- (Rupees seven lakhs only) in the appeal arising out of Or-der-in-Appeal No. 43/99 dated 13.4.1999 within three months from the date of receipt of stay order. On such deposit, the balance of confirmed duty and penalty stand waived and recovery thereof stayed.
7. As the Commissioner (Appeals) has not heard the matter on merits, therefore the impugned order No. 43/99 dated 13.4.1999 is set aside and remanded to Commissioner (Appeals) for de novo consideration with a direction that the deposit of Rs. 7,00,000/- is to be held sufficient and no further pre-deposit is insisted upon. The appellants shall be heard on merits.
8. As regards the demands confirmed in Order-in-Appeal No. 42/99, we notice that the appellants had taken benefit of Modvat credit on the basis of invoices issued by IOC. Prima facie, the issue is covered in appellant’s favour. Therefore, waiver is granted in this matter. As the Commissioner has not heard the matter on merits, the impugned order is set aside and the matter remanded to Commissioner to be heard on merits without insisting on any pre-deposit. The appellants shall be heard before a detailed speaking order is passed. At this stage, Ld. Counsel seeks permission to deposit Rs. 7,00,000/- under RG-23 Part-II as such deposits are accepted as proper deposits. Permission sought is granted.
(Pronounced and dictated in open Court).