ORDER
S.L. Peeran, Member (J)
1.This appeal arises from Or-der-in-Original dated 10-10-1992 passed by Commissioner of Central Excise, Coimbatore confirming duty demand levied on 500 KVA Generating set assembled at site in March, 91 valued at Rs. 23,87,343/- on which a duty of Rs. 3,75,990/- has been confirmed. The Commissioner has also imposed penalty of Rs. 1,000/- under Rule 9(2) read with Rule 173Q and 226 of C.E. Rules, 1944.
2. Ld. Consultant fairly brings to our notice that in their own case, the Tribunal by Final Order No. E/13/94 Bl (Special Bench, Delhi) have rejected their plea that the item in question is an immovable property. However, on the stay stage itself they remanded the case for considering their plea for Modvat credit as claimed by them. He further submits that such a plea for grant of Modvat credit has been accepted in the case of Kesoram Cement v. CCE [1989 (40) E.L.T. 413 (Tri.)] and in the case of Indian Oxygen Ltd.v. CCE, Bhubaneswar [1995 (80) E.L.T. 573 (Tri.)] and therefore, their plea for grant of Modvat ought to have been considered by the Commissioner. He submits that there was no intention to evade duty and hence penalty of Rs. 1,000/- should be waived.
3. Ld. D.R. Shri S. Kannan points out that the appellants had accepted the earlier order of the Tribunal and therefore they ought to have paid duty even if they have manufactured in another unit. The clearances made without payment of duty calls for imposition of penalty and the penalty imposed is also very meagre and hence the same should be confirmed. As regards the appellants’ plea for Modvat credit, he reiterates the departmental view that no Modvat credit can be granted without appellants having filed a declaration at the first instance.
4. On a careful consideration of the submission and on perusal of the earlier Order No. E/13/94 Bl, we notice that the Tribunal has already held that electric generator sets are goods for classification purpose under Heading 85.02. However, by the same order, the Tribunal directed the adjudicating authority to consider the plea for Modvat credit claimed by the appellants. Similar order has been passed by the Tribunal in the case of Kesoram Cement and in the case of Indian Oxygen Ltd. as noted supra. Hence, while holding that the generator sets manufactured and cleared by them are goods and dutiable and duty has been rightly confirmed, we also hold that the penalty of Rs. 1,000/- imposed is sustainable as appellants were aware that the item in question is dutiable and despite their being aware they have still cleared the goods without payment of duty. However, the prayer made now for grant of Modvat credit is required to be accepted as in their own earlier case by final order No. E/13/94 Bl the matter had been remanded for de novo consideration. Even in the cited judgments, the Tribunal has accepted the plea for grant of Modvat credit. Therefore, while confirming the duty demanded and penalty, we remand the case to the original authority to reconsider their plea for grant of Modvat credit in the matter. Ordered accordingly.