ORDER
1. Application is for waiver of deposit of penalty of Rs. 97,000/- imposed under Section 11AC of the Act with regard to alleged modvat credit incorrectly taken in April, 1994.
2. The contention of the counsel for the applicant that penalty under Section 11AC could not be invoked with respect to credit taken before its enactment in September, 1996 prima facie, has to be accepted. Accordingly I waive deposit of the penalty imposed.
3. Duty of Rs. 96,333/- is also required to be paid. Counsel for the applicant contends that the duty has been paid in 1994 but has no evidence in support. On the other hand, the appellant while forwarding its appeal to the Commissioner (Appeals) in 1997 had stated that application for waiver deposit of duty and penalty has been filed. Commissioner (Appeals)’s order asked for deposit of duty. There being no evidence of deposit of duty, if the duty is not shown to have been paid within six weeks from today and compliance not reported on 28.7.2001 the appeal is liable to be dismissed.