2. The appellants have sought waiver of the pre-deposit of the duty amount of Rs. 1,21,033.40 and penalty of Rs. 20,000/- which has been confirmed against them by disallowing the Modvat credit on the PFAFF Industrial Sewing Machines and spare parts as capital goods on the ground that the declaration filed was not proper and that these goods did not fall within the ambit of the definition of 'capital goods'. The learned Counsel has contended that when the credit was taken, the goods became eligible for claiming the Modvat credit as the same was taken on 7-4-2000, after the amendment of the definition as capital goods. He has also referred to the Tribunal's judgment rendered in the case of CCE, Jaipur-I v. Styrodync Packaging (P) Ltd., 2003 (156) E.L.T. 233 (T), wherein it has been observed that an assessee is entitled to the credit as per Rule existing on the date the credit is taken on the goods. On the other hand, the learned SDR, has reiterated the correctness of the impugned order.
3. I have heard both sides and gone through the record. The appellants at no stage before the adjudicating authority or even before the first appellate authority took the plea that the credit has been taken by them after the installation of the goods, in April, 2000. It is the first time that this fact has been so alleged by them. The argument of the learned Counsel that it is a legal plea and can be taken before the Tribunal for the first time, cannot be accepted as it is a question of fact as to when the installation of the capital goods took place in the factory premises of the appellants. This fact was required to be proved by them by adducing positive evidence to that effect. But having neither pleaded nor established the date of installation of the goods in the factory in April, 2000, at this stage, it is difficult to accept the same for allowing them total waiver of the pre-deposit of the duty amount. The ratio of the law laid down in the above referred case is, therefore, also of no avail to the appellants, prima facie. However, keeping in view the facts and circumstances of the case and the issue involved, the appellants are directed to make pre-deposit of 50% of the duty amount within eight weeks from today. On making this deposit, the requirement to pre-deposit the balance duty amount and the entire penalty amount shall stand waived and recovery stayed till the disposal of the appeal. However, it is made clear that if the terms of this stay order are not complied with within the stipulated period, then the appeal shall become liable to be dismissed under Section 35F of the Act without any further reference to them.
4. To come up for reporting compliance and further orders on 15th December, 2003.