9911796707
TMI Blog1992 (5) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned above was disallowed, alleging wrong utilisation thereof by debiting RG 23-A on the ground of non-declaration of electric motors as a final product in the declaration filed under Rule 57G of the Central Excise Rules. According to the applicants the non-mention in the declaration would not disentitle availment of the MODVAT credit as the approved classification list effective from 1-4-1990 clearly mentioned that the applicants would be claiming MODVAT credit on two items, Electric fans and electric motors. The applicants also submit that the covering letter to the MODVAT declaration mentioned that the applicants would be availing of MODVAT faculty in the manufacture of the finished products which means for more than one finished produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if made out cannot be prima facie said to be a ground to justify waiver. The amount involved is also not large. Keeping all these factors in mind, we direct the applicant to deposit the-MODVAT credit of Rs. 53,469.29 by making debit entries in the PLA or by depositing cash within 8 weeks from the date of receipt of this order failing which the appeal shall be liable to be dismissed without further notice. Matter to come up for compliance on 11th March, 1992. Dated: 3-1-1992 (JYOTI BALASUNDARAM) JUDICIAL MEMBER 4. [Dissent per: S.K. Bhatnagar, Vice President]. - With due respects to the Hon ble Member (Judicial) my views and orders are as follows. 5. I consider that the fact that the appellants had mentioned regarding the availmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OTI BALASUNDARAM) MEMBER (JUDICIAL) Hon ble President The point of difference is referred to Sh. S.L. Peeran, Member (Judicial). Harish Chander 20-2-1992 8. [Order per: S.L. Peeran, Member (J), on reference].-I have heard Shri R.K. Jain, learned Consultant for the appellants and Shri G. Bhushan, learned DJR. for the Department on the Difference of Opinion on the Stay application referred by the Hon ble Vice-President. 9. Shri R.K. Jain made the following submissions - That the assessee is a manufacturer of Electrical fans and Electric motors. MODVAT for electrical fans was obtained and inputs were declared. Electric motors were not being marketed. A declaration was filed of fan on 11-3-1969 and a copy is placed at page 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can be made by way of filing classification list. On the reverse of the classification list, the assessee had made a declaration as follows - We hereby certify that - (1) We do not have any proprietary interest in any other factory manufacturing excisable goods in India. (2) We shall be claiming MODVAT on item Nos. 1 and 2 only." There are other Sr. Nos. 3 to 6 which are not relevant and not extracted. Sr. Nos. 1 and 2 in the classification list refers to electric fans and electric motors and generators. This being the classification list for the relevant year and reading the entire material of record, the department has clearly made to understand that the assessee is going to avail MODVAT credit under Rule 57G in respect of ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the D.R., Shri R.K. Jain submitted that both the rulings were not relevant. In Ganesh Steels case, the inputs had not been declared while in the present case, the assessee had declared the inputs. In the Indian Aluminium Company s case, the party had not given details to avail of the exemption in the notification. This ruling is not relevant to the points in issue. It was also pointed out that the prima facie aspect is a second part of the question referred and the first part referred to the facts and circumstances of the case which meant that financial aspect can also be looked into by the Third Member. It was also pointed out that there was difference of opinion on the quantum of duty to be deposited which meant that all aspects had to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of stay application, the Bench is required, to first examine the prima facie case of the appellants. In cases where even if the prime facie case is not good, even then the Bench can proceed to grant a relief on die basis of balance of convenience and hardship that may be caused to the appellants. The assessee has pleaded in this case that there was no clandestine removal and it is not a case where no declaration or information was given to the department but only of non-mentioning of electric motors in the letter referred to at page 13 of the paper book. However, it was pointed out that final product was referred to in the letter dated 11-1-1989 meaning electric fans and electric motors and the reverse of the classification / list clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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