ORDER
Jyoti Balasundaram, Vice-President
1. The application for waiver of pre-deposit of Rs. 2,03,94,239/- and equal penalty arises out of the order of the Commissioner of Central Excise, Pune, who has held that the applicants are not entitled to Cenvat credit of capital goods, viz. sugar plant machinery, in terms of Rule 3 of Cenvat Credit Rules, 2002, on the ground that it was M/s. Krupp Industries India Ltd. who had manufactured the entire sugar plant machinery.
2. We have heard both sides.
3. The applicants have made out a strong prima facie case for waiver in the light of the definition of capital goods in Rule 2(b) of the Cenvat Credit Rules, 2002 which defines capital goods as “all goods falling under Chapters 82, 84 …..used in the factory of the manufacturer of final product.” Prima facie there is no finding of the Commissioner that the use of the machinery was by M/s. Krupp Industries India Ltd. in their factory for the manufacture of sugar or molasses. In other words, although the Commissioner has found that the machinery was manufactured by M/s. Krupp Industries, he has not further held that the use of such machinery was in Krupp’s factory for the manufacture of final products. Therefore, in the light of Rule 2(b) of the Cenvat Credit Rules, 2002, the applicants have made out a prima facie case. We, therefore, waive pre-deposit of duty and penalty and stay recovery thereof pending the appeal.