TMI Blog2008 (7) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. S/Shri Dushyant Dave, Sr. Advocate, Preetesh Kapoor, Ms. Hemantika Wahi, Ms. Jesal, Ms. Pinky and Ms. K. Enatoli Sema, Advocates, for the Respondent. [Order] - The present appeal has been filed by the Revenue against the judgment dated 5th September, 2000, passed by the Customs Excise Gold (Control) Appellate Tribunal (in short "Tribunal"), West Regional Bench at Mumbai in Appeal No. 4081 /98. The issue involved in the present case is as to whether the Respondent-Assessee is entitled to modvat credit on low Sulphur heavy stock (in short "LSHS") used in the manufacture of steam which in turn was used for the manufacture of the final product, namely, fertilizer which was fully exempt from payment of excise duty. 2. The R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sofar as penalty imposed was concerned, the Respondent submitted that the ingredients of Rule 173Q(1)(bb) are not present in the instant case and, therefore, no penalty was imposable. 5. The Assistant Commissioner being the assessing authority did not accept the objections taken by the Respondent and, accordingly, by its order in Original No. D/23/98 dated 23rd March, 1998, disallowed the modvat credit to the tune of Rs. 1,50,76,569/- in respect of LSHS used in the manufacture of steam which in turn was used in the manufacture of fertilizer which was exempted from the whole of excise duty leviable thereon. The Assistant Commissioner further held that in terms of Rule 57C of the Rules, modvat credit shall not be allowed on such quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady been concluded by a larger Bench of the Tribunal, the same was no longer res Integra. It is pertinent to mention here that a batch of appeals filed against, amongst other cases, the decision in the case of Ballarpur Industries Limited (supra) has been dismissed by this Court, thus, upholding the law laid down by the Tribunal in the said case. 9. On the second contention raised by the Respondent, namely that as per Rule 57B(1)(iv), the Modvat credit was available on the inputs used for generation of electricity or steam, used for manufacture of final products or for any other purpose, within the factory of production. The Tribunal decided the case in favour of the Assessee relying upon a decision of the Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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