ORDER
K.D. Mankar, Member (T)
1. The appellants are seeking waiver of pre-deposit and stay of recovery of duty of Rs. 51,65,752/- and penalty of Rs. 25 lakhs demanded in the impugned order-in-original passed by the Commissioner.
2. The issue relates to the levy of duty on “lumps and extrudes” which are the intermediate products used in the manufacture of finished products i.e. textile dyes. The appellants are pleading that, they have a strong prima facie case on merits and request for waiver of pre-deposit and stay of recovery of the entire duty and penalty.
3. Heard both sides.
4. It has been argued by the Counsel that even if it is considered that, the department has a case of under valuation of the goods, consequently the duty that would be paid would be eligible to be taken as modvat credit for discharging the duty on the finished products made from such intermediate goods and cleared from the factory. The appellants have claimed that the duty has been paid on the final products through PLA also, and the finished goods price is not in dispute.
5. Ld. Counsel placed reliance on the judgment of the Tribunal in the case of India Foils Ltd., v. CCE, Calcutta reported in 2002 (145) ELT 238 (Tri.Kolkata), wherein the Tribunal has held that on payment of differential duty modvat of the same would be available. In such circumstances, the exercise of duty recovery would be only revenue neutral exercise. Accordingly, we hold that, the appellants have made a strong prima facie case on merits to waive pre-deposit of the entire amount of duty and penalty. Accordingly, we waive pre-deposit of the entire outstanding amount and stay its recovery till the final disposal of the case.
6. Ld. Counsel pleads that, the issue is recurring in nature, therefore the matter may be fixed for regular hearing. We accordingly, direct the case to be listed for regular hearing on 09/07/2004.
(Dictated in Court)