ORDER
K.S. Venkataramani, Member (T)
1. The application is for waiver of duty amount of Rs. 1,12,553/- which is demanded from the applicant as wrongly availed exemption under Notification No. 1/93 by the applicants.
2. Shri M.H. Patil, the ld. Counsel for the applicants submitted that the Commissioner (Appeals) in the impugned order has set aside the Assistant Commissioner’s order dropping the demand. The applicants availed of the exemption under Notification No. 1/93 as an SSI unit for the clearance of their own production of control panels falling under Chapter 85 of the CETA of 1985. They also manufacture and clear control panels with the brand name of M/s. Siemens Ltd. for which they are availing of Modvat credit facility. The department held that as per the terms of the Notification 1/93, simultaneous availment of Modvat credit and full exemption is not permissible. The ld. Counsel, however, relied upon the stay order of the Madras Bench of the Tribunal in the case of Excel Food Products Pvt. Ltd .v. Collector of Central Excise, Trichy -1995 (79) E.L.T. 288 (Tribunal), wherein, under the similar situation the Tribunal has granted stay of the pre-deposit.
3. Shri Gurnard, the ld. DR referred to the terms of the notification in para l(a)(i) which is merely to the effect that where a manufacturer avails of the Modvat credit under Rule 57A, he can claim only the concessional rate of duty and not the full exemption. The applicants are squarely hit by this provision.
4. We have carefully considered the submissions. We find that the Madras Bench of the Tribunal’s stay order relied upon by the applicants, on facts, is identical with reference to the availment of small scale industrial exemption under a similar Notification No. 175/86 and availment of Modvat credit by the same manufacturer in the manufacture of biscuits in their own brand name and with the brand name of the customer. Therefore, for the purpose of disposal of the present stay application, we follow the Madras Bench of the Tribunal’s decision and grant stay.