S. Kalyanam, Member (J) - (1.)SINCE we propose to dispose of the appeal itself today with the consent of the parties, we grant waiver of pre-deposit of the duty of Rs. 58,014.95 which amount is directed to be recovered under the impugned order of the Additional Collector of Central Excise, Hyderabad dated 9.12.87 on grounds of erroneous and irregular MODVAT credit taken by the appellant.
(2.)The short question that arises for our consideration in the present appeal 's whether the credit for a sum of Rs. 58,014.95 taken as MODVAT credit by the appellant in respect of metal container is permissible under the Rules. The MODVAT credit taken by the appellant is reversed under the impugned order on the ground that in the declaration filed by the appellant on 2.3.1987 under Rule 57-A of the Central Excise Rules, the appellant though had mentioned various inputs for which the appellant wanted to avail MODVAT facility, in respect of the final product namely biscuit manufactured by them; "metal containers" 'had not been included in the list of inputs'. The appellant nevertheless was availing MODVAT credit even in respect of metal containers from 8.4.1987 onwards till the date of the visit of the officers on 14.8.1987 and was found to have availed a total credit of Rs. 58,014.95.
Shri Tulasidas Naidu, the learned Consultant for the appellant, submits that under the Rules the appellant is entitled to take MODVAT credit in respect of the metal container and even though metal container has not been specifically mentioned as one of the items or inputs in the declaration filed under the Rules for MODVAT inasmuch as the appellant had specifically indicated packing materials as one of the inputs the metal container should be construed to be covered by the expression "packing materials". The learned Consultant further submitted that even if there is an irregularity, the same is condonable because in law the appellant is entitled to take MODVAT credit in respect of metal container.

(3.)HEARD Shri K.K. Bhatia, the learned S.D.R.