ORDER
Gowri Shankar, Member (T)
1. The application is for waiver of deposit of duty amounting to Rs. 1.42 lakhs approx.
2. The duty has been demanded on the ground that the applicant should have availed of exemption under Notification 217/86 on the PVC sheets manufactured by it, consumed captively in the manufacture of PVC leather cloth. The contention of the advocate for the applicant that this case is covered by the decision of the Tribunal in Everest Converters v. CCE -1995 (80) E.L.T. 91 and more specifically in Polychem Ltd. v. CCE – 1997 (90) E.L.T. 156 has to be accepted. The Departmental Representative says that these decisions require to be reconsidered. He also raised the question that Modvat credit of the duty paid on goods falling under Heading 89.04 is restricted to Rs. 550 pet sq. metre and that even by applying the decision in Polychem Ltd. v. CCE the amount of credit that would be taken would be limited. We are not able to agree with this contention. The charge in the show cause notice is only one that credit was wrongly taken on PVC film or sheet used captively in the manufacture of leather cloth. A reference to the annexure to the notice seems to state that the applicant deliberately declared on a split up bit process of manufacture of cloth so as not to avail of Notification 107/85. We are not able to prima facie find a demand lying in the notice on the ground that the amount of Modvat credit on any of the inputs was restricted by law. The Commissioner’s order is silent upon this aspect.
3. Commissioner’s order makes reference to an alleged break up of manufacture but does not say that credit beyond limitation provided by law is available. Accordingly we waive deposit of duty demanded and stay its recovery.
4. This appeal may be listed on 21st June, 1999 along with Appeal Nos. E/3667/98 & E/3772 to 3775/98 of Bombay Dyeing where the same issue is listed.