1999 (6) TMI 138

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....une of Rs. 3,58,448/- holding that HSD Oil was non-Modvatable under Rule 57A of the Central Excise Rules, 1944. The Commissioner (Appeals) in the aforesaid order dated 22-1-1999 affirmed this finding and rejected the appellant's plea that Modvat credit on HSD Oil was admissible under Rule 57B by virtue of the non obstante clause of this rule. Appellant is before the Tribunal on the same ground as raised before the lower appellate authority. 2. I have heard Shri A.K. Jain, Authorised Representative of the appellant and Shri Y.R. Kilania, learned JDR for the respondent in the said application. 3. The learned Representative of the appellant submits that the issue involved in the appeal is covered by certain previous decisions o....

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....In the circumstances, I proceed to consider the present stay application. 5. One of the grounds raised in the stay application is that the Commissioner (Appeals) has completely disregarded the non obstante clause of Rule 57B. I find that this ground is not without force inasmuch as it appears that the Commissioner (Appeals) has not considered the adjudicating authority's observation in Para 12 of the Order-in-Original that "Rule 57A does not anywhere say that notwithstanding with Rule 57B". It appears that the adjudicating authority did not at all apply his mind to the non obstante clause of Rule 57B of the Central Excise Rules and that the lower appellate authority has also failed to note this serious lapse on the part of the adjud....

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....inable. 6. At this stage of the hearing, the learned Representative of the appellant drew my attention to the ratio of the Tribunal's decision in the case of Jindal Polymers (vide supra) in support of his contention that, in relation to the period in dispute in the present appeal, the issue is squarely covered by the said decision. I have perused the text of the order in the case of Jindal Polymers and I observe that this ruling of the Tribunal lends much support to the applicant's plea of prima facie case for the purpose of the present stay application. Therefore, though the applicant has not been able to substantiate the plea of undue hardship, I should hold that the applicant has a fair case for a conditional stay on the ground o....