ORDER
Gowri Shankar, Member (T)
1. Applications are by common applicant for waiver of pre-deposit of duty of Rs. 22.40 lakhs and penalty of Rs. 13.50 lakhs.
2. Advocate for the applicant says that the major amount i.e. Rs.15 lakhs of credit is on capital goods such as dumper, earth removing, shifting and handling equipment and parts used to quarry lime stone, which was required for the manufacture of clinker into cement. He contends that the decisions of this Tribunal in A.C.C. v. C.C.E. – 1991 (55) E.L.T. 415 followed in three other decisions, the Tribunal has held that explosives used to quarry lime stone would be inputs under Rule 57A, notwithstanding the fact emphasised in one of the decisions, the quarry was far away from the cement factory by explanation he says the capital goods used to quarry and transport lime stone would also be considered as inputs.
3. A sum of Rs. 2.92 lakhs relates to structures and goods used for making structures he says that the Commissioner has erroneously disallowed that the structures were used in relation to buildings which are not liable to duty for immovable property. He contends that there is no such requirement in Rule 57Q. A sum of Rs. 0.90 lakhs has been denied on the credit that the Bill of Entry for goods imported was in the name of the applicant’s registered office at Mumbai and in the name of the factory. He contends this issue has again decided in applicant’s own case.
4. A sum of Rs. 3.40 lakhs has been denied on the ground that refractories in question are not capital goods. Refractories at the relevant time was specified in Rule 57Q.
5. Departmental representative contends that the decision in A.C.C. v. C.C.E. will very well distinguishable, because, they related to credit under Rule 57A where the definition of inputs is far wider in scope than the definition in Rule 57Q. The latter rule define the capital goods with those which were used for producing or processing goods or bringing about any change in goods in the factory of the manufacturer. In the present case the quarry were admittedly did not constitute the factory of the manufacturer. She reiterates the contention of the Commissioner that since the building with regard to the civil structure is used is not excisable credit cannot be denied. She also adopts this reasoning in the other aspects also.
6. Refractories specified to be capital goods in Rule 57Q at the relevant time. The contention regarding the Bill of Entry being in the name of the factory also is prima facie not tenable nor the claim that the building in which the civil structure is based is not excisable goods. Prima facie however, we do not find a strong case for the applicant with regard to the goods used in the quarry lime stone. The difference coming between Rule 57A and 57Q as pointed out by the departmental representative is of significance and the issue is arguable. Taking these aspects into account, we direct that on the applicant depositing Rs. 8 lakhs within two months from today in cash or by reversing the entry in the RG 23C account, deposit of the remaining amount of the duty and penalty is waived and the recovery stayed.
7. Compliance on 27th February 1998.