ORDER
Jyoti Balasundaram, Member (J)
1. According to the applicants the following errors apparent on record arise out of Tribunal’s final order No. C-I/233-332/WZB/2003 dated 03/02/2003 by which it was held that the applicants / appellants (who were re-rollers of iron and steel) were entitled to the benefit of deemed modvat credit in terms of order dated 01/03/1994 at the specified rates on inputs obtained by them from breaking up of ships, up to the time their value of clearance remain within Rs. 75 lakhs, following the decision of the larger bench of the Tribunal in the case of Digambar Foundry v. CCE 2000 (118) ELT 85:
No finding has been recorded on the submission of the applicants that:
(1) fine and penalty imposed by Additional Commissioner, whose orders were upheld by the Commissioner (Appeals), resulting in one batch of appeals before the Tribunal and on the submission that penalty imposed by Commissioner in the case of Lucky Steel Industries are required to be set aside in the light of the larger bench decision in the case of Digambar Foundry cited supra;
(2) and the submission that credit could not be denied on exceeding the ceiling limit of clearance value of Rs. 75 lakhs as this was not a ground proposed/raised in the show cause notice for denial of credit.
2. We have carefully considered the rival submissions. As far as the first ground is concerned we agree with the applicants that a apparent mistake arise from not recording any finding on whether the fine and penalties are required to be sustained or set aside. We note that in the case of Digambar Foundry when the legal issue was settled the penalties imposed on the assesses were set aside. In the same token fine and penalties in these cases are also unsustainable. We accordingly set aside the same.
3. Regarding the second plea raised by the applicants, we see no merit therein in view of the fact that the bench has already recorded a finding on the very same argument, namely, the allegation that deemed credit is not available after a unit crosses the limit of duty free clearance value as prescribed under SSI Notification 1/93, by holding that the benefit in the deemed credit order was for assesses availing the benefit of Notification 1/93 and whatever interpretation was put on the said notification would affect the availment of the benefit thereof. Therefore the claim that this point was not specifically raised in the show cause notice issued to the applicant has no force.
4. In the result the ROMs are partly allowed by setting aside the fines and penalties.
(Operative part pronounced in the Court)