ORDER
Jyoti Balasundaram, Vice-President
1. The application for waiver of pre-deposit of duty of Rs. 97,02,179/- and penalty of Rs. 50,000/- arises out of the order of the Commissioner of Central Excise, Aurangabad. The case of the department is that Modvat credit of the above mentioned amount is not admissible to the applicants herein on inputs, viz. wire received by them from their suppliers, on the ground that the manufacturers of wire drawn from wire rod were not required to pay duty on the drawn wire.
2. We have heard both sides.
3. We find that when the matter had come up earlier, it was argued that irrespective of the legal position regarding the activity of drawing of wire from wire rods amounting to manufacture, the factual position was that the supplier to the applicants had paid duty on the drawn wire and, therefore, there was nothing wrong in the applicants’, availing credit of duty paid by the supplier of the inputs, viz. drawn wire. The Bench had directed the learned DR to obtain a report as to whether the supplier of inputs had obtained any refund of the duty paid by them on the drawn wire. It is brought to our notice that there is no claim for refund by the drawn wire supplier. In this view of the matter, the applicants rightly availed credit on the inputs supplied to them by the manufacturer of their final product. We waive pre-deposit of duty and penalty and stay recovery thereof pending the appeal.