BROOKS INDUSTRIES Vs. COLLECTOR OF C EX

JUDGEMENT

(1.) E/Stay/595/88.- Since the appeal itself lies in a short compass and is to be taken up today for disposal, the pre-deposit of the duty and penalty is dispensed with.

(2.) A. No. E/374/88. - This is an appeal against the order passed by the Addi tional Collector of Central Excise, Hyderabad, dated 20-4-1988 by which he had demanded duly of Rs. 35,497.67 under Rule 9(2) of the Central Excise Rules and im posed a penalty of Rs. 500/- under Rule 9(2) of the Central Excise Rules.

(3.) SHRI Narayanan the learned Counsel appearing for the appellants submitted that in this case the issue involved is whether in law the appellants could have opted out of MOD VAT Scheme after having once given their willingness to work under it. He pointed out that there is nothing in the Rule relating to MOD VAT, viz. Rule 57A to Rule 57J of the Central Excise Rules, which would indicate that there is any bar for such a procedure if the manufacturer during a financial year chooses to opt out of MODVAT Scheme. He further placed reliance upon the order of this Bench of the Tribunal in Ex cise Appeal No. 195/86 in Order No. 260/87, dated 27-4-1987 in which the Tribunal had held in a similar case that there was nothing in law to prevent a manufacturer from op ting out of MOD VT Scheme. The Department itself has subsequently issued clarificatory Trade Notice wherein it has been stated that a manufacturer may be permitted to opt out of MODVAT scheme in the same financial year E.C.R. (17) 1988 (30-C). Therefore the duty demanded and the penalty imposed are bad in law.