TMI Blog2003 (3) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... lly situate and in the earlier decisions given by this Bench, the disputed issue has been resolved in favour of the appellants. As such submits the ld, Advocate that their appeals are likely to succeed and there is no justification for deposit of dues in question. Shri S.K. Bagaria, ld. Advocate specifically draws our attention to the following decisions wherein the earlier stay orders were modified in view of the subsequent order of another Bench of the CEGAT on identical issues and after such modification, the appeals were allowed. Reliance has been placed on the following decisions : 1. 12 RLT 327 [ECE Industries v. CCE] Stay Order modified in view of subsequent order of another Bench of CEGAT, 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an has held in favour of the appellants. Accordingly, we allow all the Miscellaneous Applications and dispense with the condition of pre-deposit of duty and penalty and take up the appeals itself for hearing. 4. We have heard the ld. Advocates appearing on behalf of the various appellants and Shri N.C. Roychowdhury, ld. Sr. Advocate on behalf of the Revenue. 5. All the appellants are engaged in the manufacture of HDPE Pipes out of Polyethylene granules. The HDPE pipes so manufactured by the appellants are being supplied by them to the Department of Telecommunication under a contract entered with them. The appellants had availed Modvat credit of duty paid on various grades of HDPE granules which have not allegedly been used by them in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased by them were sold in the market. They have also not been able to produce any evidence to show that the granules which were allegedly used in the manufacture of the HDPE pipes were purchased by the appellants from a particular person, specifically the small-scale industries, which are exempted from payment of duty. In any case, they would have got the Modvat credit on all types of granules. Therefore, we do not find any motive which could be attributed to the appellants for using the granules of a grade different from the one specified by the DOT. However, the Department of Telecommunication has not rejected any of the consignments on the ground that the pipes were not made as per the specification of the DOT and which was inspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, all the transactions were genuine and not fictitious and Modvat credit has been taken on the quantity of inputs purchased by them and received in the factory. We, therefore, allow the appeals with consequential reliefs, if any, by setting aside the impugned order. Ordered accordingly." 8. The above order was subsequently followed by the Tribunal in the case of M/s. Brijmohan Sheokishan and others v. C.C.E., Kolkata, wherein the details submissions made by the appellants and the Revenue have been noted and after following the earlier order the impugned orders were set aside. 9. Shri S.K. Bagaria, ld. Advocate, submits that the Tribunal while deciding the earlier cases has taken into account the entire evidences on record and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on raised thereto, it was not open to the Department to deny the Modvat credit on the ground that the specified raw materials has not been used in the manufacture of such pipes. He also submits that all the manufacturers from whom the appellants have purchased the granules are primarily manufacturers and the goods were cleared from the factory on payment of duty. He submits that even though the Revenue has accepted that two or three of the grades used by them were capable of being used in the manufacture of HDPE pipes, still the Modvat credit has been disallowed on the entire inputs. He submits that the expert's opinion and the certificates issued by the manufacturers clearly show that the goods can be manufactured by blending of various po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nication. We also note that in the earlier order, the reliance was not placed not only on the above letter of M/s. Reliance Industries but the opinion given by the Central Institute of Plastics Engineering and Technology and the Gas Authority of India were also taken into account. Even in their latest letter dated 5-3-2003, the said Institute has confirmed the ratio of blending/mixing of different grades of virgin HDPE material depend on parameters like grade, MFI, density, machine specification, etc. As far as blending/mixing of following grades of HDPE/LDPE granules for pipes as per DOT specification, the said Institute has opined that the same can be commented without documentary evidence or without trial manufacture. This fact clearly s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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