ORDER
Shri S.L. Peeran
1. These are two Revenue appeals against Order-in-Original No. 22/96 dated 29.3.96 by which he was upheld the allegation brought in the show cause notice that the first respondent had manufactured and cleared genset which was excisable and dutiable. Therefore, they are required to pay duty of Rs. 83,712/- in terms of proviso to Section 11A(1). He has also confiscated 200 KVA genset manufactured and installed and used by M/s. T.A. Abdul Wahid & Co. under Rule 173Q, however, granting redemption on payment of fine of Rs.10,000/-. There is a penalty of Rs.10,000/- on M/s. Southern Power Systems under Rule 173Q and Rs.5,000/- on M/s. T. Abdul Wahid & Co., under Rule 209A.
2. Revenue is aggrieved only with the finding of the Commissioner that duty has to be considered as cum duty and modvat credit is required to be extended to them. To that extent alone, Revenue is aggrieved and there is no grievance against the second party namely Abdul Wahid & Co.
3. Shri A. Jayachandran, Ld. DR submits that appeals be allowed as the Ld. Commissioner was not correct in treating the duty as cum duty and extending modvat benefit to M/s. Southern Power Systems Pvt. Ltd. On a specific query from the Bench as to whether there is any relief claimed against Abdul Wahid & Co., he submits that there are no grounds made out against them.
4. Shri Srinivasa Raghavan, Ld. Consultant appears for first respondent and submits that they have filed cross objections. He submits that they had also filed their appeal which was rejected under Sec. 35F of the Act, and they are contemplating to file an application for restoration, while on Mr. Khan, representative appeared for M/s. Abdul Wahid & Co. submits that they have already paid the penalty and there is no relief claimed against them. Hence, appeal against them is required to be rejected.
5. We have carefully considered the submissions made both sides. We notice that the Commissioner was justified in treating the duty as cum duty and granting modvat credit. The issue is covered by the larger bench judgement rendered in SRI CHAKRA TYRES Vs. CCE reported in 1999 (108) ELT 361. In view of the Larger Bench of Five Members having answered this question that duty has to be treated as cum duty and abatement of duty granted on the actual price and modvat is also extendable, therefore we do not find any merit or grounds in the Revenue’s appeals. There is no prayer for enhancement of penalty against M/s. Abdul Wahid & Co. They have already paid the penalty. In view of appeals not having any merits, therefore both the Revenue appeals are rejected.
(Pronounced & dictated in open court)