ORDER
V.K. Agrawal:
1. In this Appeal, filed by M/s Abrol Engineering Co. Pvt. Ltd., the issue involved is whether capital goods credit under Rule 57Q of the Central Excise Rules is available in respect of Refractories used in furnace.
2. Shri Ravi Chopra, Ld. Advocated, submitted t hat refractories are capital goods and have been specifically mentioned under Clause I(d) of Explanation to Rule 57Q as amended by Notification No. 11/95-CE-(NT) dt. 16-3-95; that the said amendment is clarrificatory in nature and has to be given retrospective effect; that in Jindal Steel Strips Ltd. Vs CCE Raipur, 1998(9) ELT 620 (T) refractories were held to be eligible capital goods for capital goods credit even prior to 16-3-95 as part of furnace. He, further, submitted that the department has denied capital goods credit even in respect of refractories which were received after 16-3-95 which in any case is not correct; that the imposition of penalty is not warranted as it was question of interpretation of the provisions of Rule 57Q.
3. Opposing the appeal, Shri A.K. Jain Ld. DR, submitted that the issue involved in the present appeal is pending before the Supreme Court in Jawahar Mills case and as such the matter may be kept pending.
4. I have considered the submissions of both the sides. A Show cause notice was issued to the Appellants for dis-allowing the capital goods credit taken by them on 13-1-95 and 18-3-95 in respect of refractories. Admittedly refractories were specifically added as capital goods in Explanation to Rule 57Q by Notification No. 11/95. The Commissioner (Appeal) has not given any findings in the impugned Order about the capital goods credit taken on 18-3-95, and therefore, the matter has to be remanded to the Commissioner (Appeal) for passing the order afresh. I also agree with the Ld. Advocate for the Appellant that no penalty is imposable in the present matter as the issue involved is of interpretation of Rules. Penalty imposed is therefore, set aside and the appeal is allowed by way of remand to the Commissioner (Appeal) for passing order afresh in a accordance with law.