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TMI Blog1994 (10) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... Graphite Jigs 22-10-1988 to 31-1-1990 1,15,599.73 3. Fused Quartzware 31-3-1989 to 15-3-1990 1,23,763.29 A further ground for denial of modvat on fused quartzware is alleged non-declaration of this item. 2. Shri A.R. Madhav Rao, learned Counsel submits that the role of the above 3 items in the manufacture of transistors and diodes is briefly as under : (i) High Resolution Photomasks Three broad manufacturing operations viz. layering, patterning and doping are involved in making the chips used in transistors and diodes. The electrical performance and characteristics of the diodes are decided by the patterns on the chips for which the photomask is the essential plate. The circuit is designed followed by the pattern generation and the preparation of the master plate. The imported high resolution photomasks are used to convey the pattern on to the semi-conductor chips. Photomask is a flat glass plate with a layer of emulsion coating on to which the pattern is transferred from the master plate by the process of photolithography. Then the semi-conductor chips are coated with a layer of photo resist chemical and the photomask is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide dispute between the applicants and the Department regarding availability of modvat credit. Hence, no suppression can be attributed to the applicants to warrant the extended period of limitation being invoked. In view of the above learned Counsel prays for waiver of pre-deposit of duty and stay of its recovery pending the appeal. 3. Learned DR, Shri V.C. Bhartiya draws our attention to the technical write up submitted by the applicants in respect of the above 3 items and to the finding of the adjudicating authority in paragraph 6 of the order that the role of the items in manufacturing process of transistors and diodes is to bring about a change in the manufacturing substance in relation to the manufacture of the final product. He contends that the 3 items are used as apparatus/appliances for producing and bringing about change in the substance used in relation to the manufacture of the final product and, therefore, are clearly excluded from the definition of the inputs. The fused quartzware will not come within the purview of glass tubes and hence it has not been declared as such. As the actual usage of the 3 items has been suppressed by misdeclaring durable/consumable appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oto mask is brought in contact with it and exposed to ultra violet light for the transfer of pattern. With the frequent contact with such photo-resist material the Photo masks suffers degradation and damage to the minute patterns after about 40 to 50 exposures, and is not usable thereafter. 5.4 Graphite Jigs are basically a preparation made of Graphite in the form of Blocks/Plates. These items provide heat, current and alignment simultaneously to the Diodes seals and chips which are sealed with Glass Tubes at a very high temperature. Current is passed through these Jigs in a controlled atmosphere chamber. Since these Jigs have to carry heavy currents and are constantly cycled from room temperature to 800oC, the graphite loses tolerance and appropriate surface/finishes. 5.5 The fused quartzware items are used to carry these silicon wafers into the furnace and thereby are also exposed to these very high temperature. The repeated thermal cycling between room temperature and 1250oC in the diffusion process creates thermal stresses in the fused quartzware leading to cracking and breakage after a few cycles. 6. Prima facie therefore, considering the uses to which these items are pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls Industries - reported in 1980 (45) STC 229 it was held that the words raw materials as used in the definition of manufacture denote merely material from which a final product is made; in other words, which after undergoing process gets converted into a distinct product." 6.5 From the literature submitted by the learned advocate itself, it is clear that these items are not raw materials within the accepted meaning of raw materials . In this view of the matter therefore, even in regard to time bar, appellants have not succeeded in making out a prima facie case. I am at this stage not pressing any final views in the matter but pointing out only that both on merits of the case, as well as time bar, the appellants have not succeeded in making out a prima facie case. The contentions raised will have to be gone into in detail at the time of final hearing. The learned advocate for the appellants on a specific query from the Bench admitted that he has not pleaded financial hardship. 7. Since the appellants have not succeeded in making out a prima facie case either on merits nor is there any financial hardship, I reject the application for waiver of pre-deposit and stay of the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited the case of Collector of Central Excise v. Asia Insulated Wires (P) Ltd., 1992 (62) E.L.T. 812 to meet the opinion recorded by the Ld. Technical Member in the present referring order. 11. On merits he submitted that even indirect use of the inputs is permissible for availing the benefit of Modvat credit under Rule 57A and cited the case of Collector of Central Excise v. Weldekar Laminates Pvt. Ltd., Bombay, 1990 (49) E.L.T. 538 (Tri.) = 1990 (31) ECR 222. 12. In reply the Ld. JDR Shri V.C. Bhartiya while supporting the opinion expressed by the Ld. Technical Member in the present referring order submitted that prima facie the appellants have no case on merits and the demand was not time barred and cited the case of Singh Alloys Steel Ltd. v. Assistant Collector of Central Excise, 1993 (66) E.L.T. 594. 13. Considered. After going through the case record and the opinions recorded in the present referring order by the Ld. two Members, I am of the view that on merits the appellants have no prima facie case for dispensation of the requirement to pre-deposit the disputed amount of duty and penalty. However, on the point of time bar I am of the view that the appellants do have a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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