ORDER
Archana Wadhwa, Member (Judicial)
1. The prayer in the application is for dispensing with the pre-deposit of duty of Rs. 47,38,161/- disallowed as modvat credit on furnace oil and LDO availed by the appellants during the period June 1998 to February 1999, in addition to personal penalty o Rs. 47,000/-.
2. As per the fact of record, the said credit was initially availed by the appellants in respect of furnace oil and LDO to the extent of 10% only. It was only subsequently that the differential credit was availed by them on the ground that the said notification is not applicable of taking of credit under Rule 57 B having been issued under Rule 57 A. The lower authorities have not accepted the above stand of the appellants and has confirmed demand of duty against them.
3. We have Shri V.K. Jain, learned Chartered Accountant for the appellants and Shri M.H. Sheikh, and learned J.D.R. for the Revenue. The appellants contention is that the restriction imposed under Notification No. 14/1997-C.E.(NT) dated 3.5.1997 would not apply to the LDO used as fuel when the modvat credit claim is under Rule 57B. On the other hand the learned J.D.R. submits that the issue is no more rs- Integra and has been decided by the earlier Tribunal’s decision in the case of Jindal Polyester v. CCE, Meerut-2001 (137) E.L.T. 355 (Tri.-Del.) wherein the identical contention were raised before the bench and it was held for considering the ‘specified duty’ in terms of Rule 57B of the Central Excise Rules, 1944, notification No. 14/97-CE (NT) issued under erstwhile Rule 57A becomes relevant. To the similar effect is another decision reported in 2001 (129) ELT 467 (Tribunal).
4. Inasmuch as the matter has been decided by the Tribunal in the above referred cases, we are of the view that there is no prima-facie case in favour of the appellants so as to allow the said application un-conditionally. However, we take note of the fact that the appellants case is referred to BIFR and they are a registered company by BIFR. As such, taking the said fact into consideration, we direct the appellants to deposit an amount of Rs. 15 Lacs towards duty within a period of 12 weeks from today and report compliance on 1.8.2003. While making the above direction we have also taken into consideration the fact that the appellants has availed the credit and has also utilized the same for payment of duty on their final product, as informed by the learned advocate appearing on behalf of the appellants.
5. Subject to deposit of the above amount of pre-deposit of balance amount of duty and entire amount of personal penalty is waived and recovery of the same is stayed during the pendency of the appeal.
6. Matter to come for reporting compliance on 1.8.2003.
(Pronounced in Court)