ORDER
P.G. Chacko,. Member (J)
1. These applications seek waiver of pre-deposit and stay of recovery in respect of duty and penalty amounts.
2. The first application relates to Modvat credit denied to the appellants in respect of certain components of what is called “co-generation plant”, which was used, during the period of dispute, for generating electricity. A part of this electricity generated was captively consumed by the assessee for the manufacture of their final product (sugar) and the rest was supplied to the State Electricity Board. The lower authorities have denied capital goods credit in respect of the above components on the ground that the electricity generated by the co-generation plant was partly supplied out of the factory instead of being used captively for the manufacture of sugar. Ld. CA for the appellants submits, with reference to Rules 57D and 57R of the Central Excise Rules, 1944, that the credit was not liable to be denied on the above ground. He relies on case law also. Ld. SDR has contested this argument on the strength of the findings recorded in the impugned Order.
3. After examining the Rules and considering the case law cited by 1d. C.A, we are of the view that the appellants have a prima facie case. There is no dispute of the fact that the co-generation plant was covered by the expression “plant” used in Rule 57Q as the Rule stood during the earlier part of the period of dispute. Again, there is no dispute of the fact that the components were actually used for fabrication/assembling of the said plant. The Revenue has no case that, by virtue of any such components being classifiable under certain tariff entries, Modvat credit was not liable to be extended to them. The only ground raised in this case by the Revenue for denial of credit in respect of the components is that a part of the electricity generated by the co-generation plant was not captively consumed in the sugar factory. This ground does not appear to be sustainable. The case law cited by Id. CA apparently supports his argument. Therefore, we are of the view that waiver of pre-deposit and stay of recovery should be allowed in respect of the amount of credit taken on the components of co-generation plant. Consequently, in relation to the penalty imposed by the Commissioner (Appeals) on the assessee in connection with denial of Modvat credit to them, there should be a similar Order. In the result, both the applications are allowed and waiver of pre-deposit and slay of recovery are granted in respect of the duty and penalty amounts.