ORDER
Jeet Ram Kait, Member (T)
1. For the purpose of hearing the appeal, the appellants are required to pre-deposit a sum of Rs. 94,62,626, which was Modvat Credit lying unutilised in RG-23A Part II Register at the Distillery Division, to the RG-23A Part II of the Accounts Register of the Sugar Division of the same Company, namely, M/s. Rajshree Sugars and Chemicals Ltd., wherein, the Ld. Commissioner (Appeals) has reversed the order of the original authority and by expediting the appeal filed by Revenue, has allowed the departmental appeal and confirmed the demand of Rs. 94,62,626.
2. Appearing on behalf of the appellant, Shri G. Suresh representative of the Appellant-Company, submits that an unutilised balance was lying in RG 23A Part II Account Register of the Distillery Division of M/s Rajashree Sugars and Chemicals Ltd, Andipatti Taluk, Theni District, which was taken on 1.1.1999 and utilised by the Sugar Division of the Appellant-Company, consequent on issue of one Registration Certificate instead of the two Registration Certificates issued earlier separately for M/s. Rajashree Sugar and Chemicals Ltd. (Distillery Division) and M/s Rajashree Sugar and Chemicals Ltd. (Sugar Division), treating them as two different factories. He further submits that since these are two divisions of the same manufacturer, namely, the sugar factory, the inter transfer of Modvat Credit is permissible and cannot be denied by the department. In this connection, they relied on the judgment rendered by Tribunal in the case of K.M. Sugar Mills Ltd. v. Commissioner of Central Excise, Allahabad, 2001 (133) ELT 567 (TRI.-Del.), wherein, the sugar factory had single Registration Certificate and both the divisions of the Company were located side by side and it was held that Modvat Credit from the Distillery Division to the Sugar Division cannot be refused. He also relied on the Tribunal’s Judgment rendered in the case of Inox India Ltd. v. Commissioner of Central Excise, Vadodara, 2001 (133) ELT 487 (Tri.-Mumbai), wherein also, referring to the judgment rendered in the case of Universal Hydrocarbons Co. Pvt. Ltd. v. Collector of Central Excise, Calcutta, 1994 (72) ELT 9.7 (Tri.-Cal.), it was decided that the balance transfer from one register to another, consequent to single registration, does not attract provisions of Rule 57F(7) and such inter-division transfer was held to be legal and proper. He, therefore, submitted that complete waiver of the pre-deposit of the Modvat Credit sought to be recovered from them may be granted and early hearing should also be granted, as the revenue involved is more than Rs. 90 lakhs.
3. Appearing on behalf of the Revenue Ld. JDR Shri C. Mani submits that the Modvat Credit can be allowed under Rule 57A, when the goods have been received into the factory. He further submits that one of the basic principles of Modvat Credit is that credit can be taken only with respect to inputs received. This principle is also recognised in the Proviso to Rule 57F(12). Therefore, the Appellant-Assessee is only entitled to the credit of duty relating to the quantity of Molasses transferred. He, therefore, submitted that the order of the Ld. Commissioner (Appeals) denying them the Modvat Credit of Rs. 92,62,626 is the correct order and the Appellant be put to terms and asked to pre-deposit the above amount of Rs. 94,62,626 for hearing the appeal.
4. We have considered the submissions made by both the sides and are of the considered opinion that the appellants have made prima facie, a strong case in their favour, inasmuch as the Modvat Credit has been taken on the inputs, which are received in the factory and respectfully following the judgment rendered by the Delhi Bench in the case of K.M. Sugar Mills Ltd. v. Commissioner of Central Excise, Allahabad, 2001 (133) ELT 567 (Tri. Del.), the transfer of credit from Distillery Division to Sugar Division cannot be refused. We, therefore, order for waiver of the pre-deposit of the duty amount and stay its recovery till the disposal of the appeal. Since the amount of duty involved is about Rs. 92,62,626, we also grant early hearing and the case be listed for 23.4.2004 for finally hearing the appeal itself.
