ORDER
J.H. Joglekar, Member (T)
1. When the stay application was called out it appeared that the issue being covered by a CEGAT judgment, the main appeal itself could be disposed of at this stage. This was done by granting waiver of pre-deposit of duty of Rs. 6,10,580/-and penalty of Rs. 10,000/-.
2. The appellants received steam through pipeline on which the suppliers had paid duty, and took Modvat credit thereupon. The credit was denied on the ground that the steam was exempted under notification 4/97-C.E., dated 1-3-1997 as amended and that a manufacturer could not pay duty in spite of the exemption merely to create Modvat benefit for their buyer. This denial was upheld by the Commissioner (Appeals) placing reliance on the Board’s circular F. No. 93/13/90-CX-3 (No. 2/91-CX., dated 4-1-1991). Hence the appeal.
3. In the cited case reported in 1995 (80) E.L.T. 91 (T) (Everest Converters v. CCE) the Tribunal in identical circumstances, after examining the cited circular, had held that where there was a notification it was not obligatory on a manufacturer to avail its benefits but that he had the choice to pay duty. Following the judgment I hold that the payment of duty by GNFC was in order and that the denial of the credit thereupon was improper and without basis on law. The appeal is allowed with consequential benefit.