ORDER
K.S. Venkataramani, Member (T)
1. The application is for waiver of pre-deposit of Rs. 51,48,925/- and of the penalty of Rs. 30,00,000/-. The amount is being sought to be recovered from the applicants as capital goods Modvat credit wrongly availed of by them Under Rule 57Q. The Commissioner has in the impugned order taken a view that the items in question viz. CTD bars, steel plates, angles and channels and like articles were used as raw materials for erection of structures which are immovable property and not goods at all. Therefore, no Modvat credit Under Rule 57Q is permissible thereon.
2. Shri Patankar, the ld. Counsel for the applicants submits that the goods in question are parts of blast furnace plant for production of pig iron and granulated slags and as such they are covered by definition of capital goods Under Rule 57Q(1)(b) which covers parts of plant also as capital goods. It was, therefore, pleaded that the denial of Modvat credit Under Rule 57Q is not in order.
3. Shri Gurdeep Singh, the ld. DR, for the revenue refers to the reasoning in the impugned order to say that when the materials are used in structures which are in the nature of immovable property, the question of availing Modvat credit on inputs would not arise.
4. We have carefully considered the submissions. The issue is very much arguable and we are not satisfied that this is a fit case for dispensing with the pre-deposit. Therefore, in terms of Section 35F of the Central Excise Act, 1944, we direct that the applicants should freeze the Modvat amount as demanded in the impugned order in their capital goods Modvat account and should not utilise it till the disposal of the appeal and subject to this condition, pre-deposit of the penalty amount is dispensed with and recovery is stayed.
5. The matter will be listed for ascertaining compliance with this order on 14-7-1997.