ORDER
R. Jayaraman, Member (T)
1. This Misc. application is in respect of this Bench interim Order No. 2658/96/WRB, dated 23-7-1996, directing the applicants to deposit the entire modvat amount of about Rs. 6.57 crores. The issue for consideration was whether the modvat credit in respect of capital goods meant for production of acetic acid could be utilised in respect of the duty payable on products other than acetic acid. There is no dispute about the eligibility of the modvat credit on the capital goods for the manufacture of acetic acid; but when the capital goods for production of acetic acid were received, they took the credit and utilised it instantaneously in regard to the duty payable on other products. On the basis of this objection, the credit has been disallowed. During the hearing of the stay application, though an earlier interim order passed by this Bench was cited before the Members, they have taken the view that this has no precedent value and the entire deposit should be made. In the earlier interim Order No. 2182/95/WRB, dated 6-12-1995, prima facie view taken was that in terms of Rule 57S of the Central Excise Rules as amended from 16-3-1995, wherein it is mentioned that the credit of duty on capital goods could be utilised in respect of duty payable on any excisable goods and when utilisation has taken place subsequent to the amendment, prima facie balance of convenience was held in favour of the assessee. However, in the present interim order, against which the Misc. application has been moved, it has been held that notwithstanding Rule 57S, the entire Rules have to be read in a composite manner and hence the credit was prima facie held to be irregular. Irrespective of the conflicting prima facie views, Shri Willingdon Christian pleads that even if the amount is deposited, since the acetic acid plant has subsequently been commissioned and they have cleared acetic acid on payment of duty on PLA, when the deposit of this modvat credit is made, the credit of duty on capital goods would not get extinguished because they have not gone into the clearance of any exempted product. In this regard, he cited the decision of this Bench in the case of Mukesh Engineering Industries v. Collector of Central Excise, Mumbai, reported in 1995 (79) E.L.T. 718 (Tribunal) as well as the decision of the East Regional Bench in the case of Ipitron Tiles Limited v. Collector of Cen. Excise reported in 1993 (21) E.T.R. 380. Hence without any observation being made in the order to this effect, the entire amount has been ordered deposit and they have to wait for the final disposal of the appeal. He would therefore offer to deposit the entire duty demand, if suitable directions are made that the credit to the extent of duty demand has to be restored so that the same can be utilised towards clearance of acetic acid.
2. After hearing both the sides, prima facie, we are to observe that once an interim order of this Bench is cited before that Bench, though that Bench is composed of different Members, the interim order has to be respected so as to maintain consistency. In any case, despite the conflicting prima facie views, going by the final decision of this Bench and also of the East Regional Bench, we are to allow the request of the ld. Advocate and direct that on the applicants depositing the entire duty amount, they are entitled to take corresponding credit in their modvat capital goods account, which credit can be utilised for payment of duty towards acetic acid.
3. Both the appeals, covered by this interim order as well as the earlier interim order, may be listed for final hearing in the month of October/November, 1996.