ORDER
Jeet Ram Kait, Member (T)
1. This appeal arises against order in Appeal No. 169/2001 (CBE) (GVN), dated 6-8-2001 in which the Commissioner (Appeals) has modified the order of the duty from Rs. 2,07,825/- to Rs. 1,97,926/-. He had also held that since they have already paid Rs. 1,88,201/-, they have to pay the balance amount of Rs. 9,727/- only. They have also been directed to pay the interest under Section 11AB of the Central Excise Act. Statutory penalty under Section 11AC has also been accordingly reduced equivalent to the duty of Rs. 1,97,928/-.
2. While reiterating the submissions made in the appeal memorandum, the ld. Consultant Shri Kandaswamy urged that the lower authorities have discarded their plea of allowing Modvat in view of the Hon’ble Apex Court judgment rendered in the case of Formica India Division v. CCE – 1995 (77) E.L.T. 511 (S.C.) in which it has been held that when no duty is paid on clearance or no declaration is filed, then also they are entitled for Modvat credit on inputs which has been used in or in relation to the manufacture of the final product in case the Revenue asks for the duty on such final products for which were initially cleared without payment of duty. He therefore prayed that Modvat credit is allowed, then the duty incident would come down considerably. He has, therefore, submitted that this case may be remanded back to the original authority for allowing them to avail Modvat credit in view of the judgment rendered by the Apex Court in the case of Formica India Division v. CCE (supra).
3. Appearing on behalf of the Revenue, the ld. SDR submitted that he has no objection, if this case is remanded back for de novo consideration in view of the judgment referred to above rendered by the Hon’ble Apex Court in the case of Formica India Division v. CCE (SC).
4. We have considered the submissions made by both the sides and find that Modvat credit has not been allowed to them on the inputs which has been used in or in relation to the manufacture of the final products. Modvat credit cannot be denied to them because they could not have ordinarily complied with the procedure laid down in Rule 56A of the Central Excise Rules, when they were not paying the duty initially, therefore, they are entitled for the Modvat credit. In view of the Apex Court judgment in the case of Formica India Division (supra). While allowing the stay application, we take up the main appeal itself for remand. The impugned order is therefore set aside. The appeal is remanded for de novo consideration to the original authority on the issue of allowing Modvat credit. And any other submissions, which the appellant would like to make during the course of the personal hearing; or earlier to the date of personal hearing the lower authority shall give an opportunity and sufficient time to the appellant before the case is decided in the de novo proceedings, after adopting the principles of natural justice. Appeal is allowed by way of remand. Ordered accordingly.