ORDER
P.S. Bajaj
1. None has come present on behalf of the appellants on the call of the appeal. On the last date of hearing the counsel for the appellants was present and the appeal was adjourned for today, but today neither the counsel nor any other representative has come present. No request for adjournment has also been received. Therefore, we proceed to decide the appeal on merits.
2. This appeal has been directed against the order in appeal passed by the Commissioner (Appeals) dated 29.1.98 vide which modvat credit has been disallowed to the appellants on the original invoices as well as on ‘capital goods’.
3. The issues involved in the present appeal are only two (l) whether the disputed goods satisfy the definition of ‘capital goods’ for the purpose of modvat credit under Rule 57-Q of the Central Excise Rules and (ii) whether the modvat credit could be claimed on the basis of the original invoices by the appellants.
4. Regarding the first issue, the Larger Bench of the Tribunal in latest pronouncement in CCE Indore Vs. Surya Roshini, 2000(42) RLT 817 has ruled that only those goods would be eligible for modvat credit as ‘capital goods’ if they satisfied the conditions laid down in Explanation I appended to Rule 57-Q of the Rules. Therefore, the question whether the disputed goods satisfied those conditions or not, requires re-examination in the light of the Larger Bench decision in the abovesaid case. This judgement was not before the learned Commissioner (Appeals) while passing the impugned order as the same has been pronounced later on.
5. Regarding the availability of modvat credit on the original invoices in term of Rule 57-Q(2A) the issue require re-deamination in the light of Larger Bench decision in CCE new Delhi Vs. AVIS Electronics Pvt. 2000(117) ELT 571. The guidelines under which the modvat credit on the original invoices can be claimed by the assessee had been laid down by the Larger Bench in that case. This decision of the Larger Bench was not before the learned Commissioner (Appeals) or even the adjudicating authority while deciding the issue. This issue requires re-examination in the light of the said judgement of the Larger Bench.
6. In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside and the case is sent back to the adjudicating authority for deciding the abovesaid two issues afresh in accordance with the Larger Bench decisions referred to above after affording opportunity of hearing to both the sides. Appeal of the appellants accordingly stands allowed by way of remand.
Dictated and pronounced in the open Court.