2003 (10) TMI 357 - AT - Central Excise

Summary

Issues:
Waiver of pre-deposit of duty amount and penalty due to disallowance of Modvat credit on industrial sewing machines and spare parts as capital goods.

Analysis:
The appellants sought waiver of the pre-deposit of duty amount and penalty, contending that the Modvat credit was claimed after the amendment of the definition of capital goods. The Counsel referred to a Tribunal judgment supporting the entitlement to credit as per the rule existing on the date the credit is taken. The Respondent, however, supported the impugned order disallowing the credit.

Upon hearing both sides, the Judge noted that the appellants did not raise the installation date of the goods before the lower authorities. The Judge emphasized that the date of installation was a factual matter requiring positive evidence, which the appellants failed to provide. Despite the legal argument that this issue could be raised for the first time before the Tribunal, the Judge found it difficult to accept the claim without concrete proof. Consequently, the Judge directed the appellants to make a 50% pre-deposit of the duty amount within eight weeks, allowing waiver of the remaining duty amount and penalty until the appeal's disposal.

The Judge scheduled a compliance hearing for further orders on a specified date. Failure to comply with the stay order terms within the stipulated period would render the appeal liable for dismissal under Section 35F of the Act without further reference.