TMI Blog2012 (10) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The concept of modvat is that if the raw material suffered duty then relief should be given so far as excise duty on the final product is concerned - raw material supplier has already paid duty with the Government Exchequer. Therefore, the department shall not suffer irreparable loss - 100% waiver of demand of duty, interest and penalties allowed - E-42/2010 - SP-230/KOL/2011 - Dated:- 14-9-2011 - S/Shri B.S.V. Murthy, Ashok Jindal, JJ. REPRESENTED BY : Dr. Samir Chakraborty and Shri Abhijit Biswas, Advocates, for the Appellant. Shri D.K. Acharyya, Spl. Counsel, for the Department. [Order per : Ashok Jindal, Member (J)]. Heard both sides. 2. The applicants, namely, M/s. Tata Metaliks Ltd., filed this application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is not duty credit cannot be denied to the appellants. To support his contention, he relied upon the decision of the Hon ble Madras High Court in the case of Commissioner of Central Excise, Chennai-I v. CEGAT, Chennai reported in 2006 (202) E.L.T. 753 (Mad.). He further submitted that for the earlier period also i.e. 9-9-2002 to 31st January, 2008, in the applicant s own case vide Order No. M-202/S-287/Kol/2010, dated 26-7-2010, this Tribunal has already granted unconditional waiver of pre-deposit of whole duty, interest and penalty. Therefore, the said precedent decision is applicable to the facts of this case and prayed that the stay be granted. 4. On the other hand, Shri D.K. Acharyya, ld. Spl. Counsel for the Revenue, strongly oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplier has paid the duty which has been accepted by the Department. Therefore, in the light of the decision, in the case of C.C.E., Chennai-I v. CEGAT, Chennai (cited supra), the Hon ble High Court of Madras held as under : In fact, duty was paid by the assessee s supplier despite exemption Notification dated 28-2-1999. It may be that the supplier was unaware of such notification or it may be that some condition of the notification was not complied with but, nevertheless, the fact remains that duty was paid by the assessee s suppliers. A perusal of Rule 57A (1) ibid shows that the terminology used therein is paid and not payable . This distinction is important because it indicates that factual state of affairs have to be taken into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al supplier has already paid duty with the Government Exchequer. Therefore, the department shall not suffer irreparable loss if we grant the stay. In the course of proceedings, it was particularly asked to Shri Acharyya whether the matter can be disposed of finally, as we have heard the matter for more than half an hour and the issue is squarely covered by the decision of Madras High Court in the case C.C.E., Chennai-I v. CEGAT, Chennai (cited supra), Shri Acharyya submitted that he had to take instructions from the concerned Commissioner. Therefore, he prayed that only at this stage stay application be considered. 8. In view of the above observations, we find that the appellants have made out a fit case for 100% waiver of demand of duty, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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