9911796707
TMI Blog1998 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for both the final products are Chlorin and phenol. In respect of the said inputs submits the ld. advocate, which go into the manufacture of dutiable final product i.e. MCP, the appellants took Modvat credit and utilised the same towards the payment of duty on MCP. It is, however, submitted that in respect of the same inputs going into the manufacture of weedicide, no credit is taken inasmuch as the final product is cleared without payment of duty as aforesaid. A dispute has arisen because in the course of manufacture of the final product i.e. weedicide, a product at the intermediate stage arises which is admitted to be marketable product. That product is DCP i.e. Dichlorophenol classified under the same Tariff sub-heading 2908.00 as MCP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, they did not follow the procedure under Modvat scheme or did not claim the benefit of exemption Notification 175/86. Now that the duty liability has been confirmed by the lower authority the benefits accruing under law either in terms of Notification 175/86 or in terms of Modvat procedure should not be denied to them. For the first proposition in support of the benefit of Notification 175/86, he relies on the following judgment of the Tribunal :- (i) 1992 (40) ECR 519 (Collector of Central Excise v. Vikranth Tyres Ltd.) (ii) 1990 (48) E.L.T. 569 (Kopran Chemicals Co. Ltd. v. CCE) (iii) 1989 (41) E.L.T 613 (Griffon Laboratories Pvt. Ltd. v. Collector of Cutoms) (iv) 1989 (44) E.LT. 552 (Collector of C. Ex. v. Muzzaffarnagar S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the reason that the appellant is also availing the benefit of Modvat scheme in respect of another product i.e. MCP manufactured by them. He relies on for this proposition on Larger Bench judgment in the case of Kamani Foods reported in 1995 (75) E.L.T. 202. As regards the penalty, ld. JDR submits that since there is no dispute raised by the appellants that DCP is dutiable and the DCP is also being sold as well as consumed captively during the relevant period, the appellants could be said fully aware about the dutiability of DCP. No `bona fides can be attributed to the appellants in these facts. He, therefore, prays for sustaining the penalty. 4. In his rejoinder, ld. advocate, Shri S.K. Bagaria points out that the sale of DCP, a produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time will not be a correct approach in the facts and circumstances of the case. We therefore, remand the matter to the adjudicating authority to consider the extension of benefit of Notification 175/86 or extension of Modvat credit of duty paid on inputs whichever is beneficial to the appellants on the facts and evidences to be adduced by the appellants. The objection regarding the non-filing of classification list for claiming the benefit of Notification 175/86 or the objection of not filing the declaration under Rule 57G and not following the procedure under the Modvat scheme should not be taken at this stage so long as the Additional Collector is satisfied that the inputs have been utilised in the manufacture of final product i.e. DCP. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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