K. Sreedharan, J. (President)
1. In this appeal M/s. Electricity Poles Mfg. Unit, controlled by the Government of Uttar Pradesh, questions the correctness of Order-in-Appeal No. 324-CE MRT/2000, dated 22-5-2000. As per that order the Commissioner (Appeals) modified Order-in-Original passed by the Assistant Commissioner and confirmed the duty demanded therein. He relieved the appellant from the liability of payment of penalty. According to the learned Counsel representing the appellant, the case in hand is covered by the decision of the Tribunal in Rajshree Foods Pvt. Ltd. 1997 (18) RLT 52 and the appellant could not have been saddled with the liability as per the orders passed by the Tribunal.
2. A demand cum Show-Cause-Notice dated 28-4-1998 was issued to the appellant alleging that assessable value of the electric poles manufactured by the appellant herein for the use of Electricity Board, should have been evaluated, taking into consideration the notional profit in force, as well. This profit element have not been included in the assessable value of the poles. There was short levy of duty. The amount so short levied during the period from October, 1995 to March, 1998 was found to be Rs. 72,491.40.
3. Appellant’s contention is that they were not the manufacturer of the poles. They got those poles manufactured by independent contractors and those contractors must be treated as manufacturers for the purpose of excise law. This argument prima facie does not appeal to us on account of the finding arrived by the authorities below. The appellate authority in the impugned order observed :
“I find that the Assistant Commissioner, in his order, has held that the appellant is the manufacturer of the poles as they are availing the Modvat facilities and following of Central Excise procedures.”
In the light of this finding we are not in a position to hold that the appellants were not manufacturers. If they were not the manufacturers, under no circumstances could they avail of Modvat credit. These two are contradictory stands. In this petition appellant prays for waiver of pre-deposit as contemplated by Section 35F of the Act. In the nature of the contentions raised and the facts, we do not find justifiable reason to waive the entire amount demanded by way of duty. Appellant is directed to deposit Rs. 50,000/- (Rupees fifty thousand only) as a pre-condition for entertaining this appeal within 4 weeks from today. For reporting compliance adjourned to 14-12-2000.