Judgment:
1. The miscellaneous application for extension of stay order No.C-II/4063/WZB/2002 dated 18/11/2002 by which unconditional stay was granted to the appellant. However, we find that the issue lies in a narrow compass and the appeal can be taken up and disposed of at this stage.
2. We have heard Ld. Advocate Ms. Anjali Chandrekar and Shri K.L.
Bablani, JCDR.3. It is seen that the show cause notice issued to the appellant proposing the denial of modvat credit of Rs. 40,58,904/- on the alleged ground that the appellant had not declared Polyester Chips as one of the final products in their modvat declarations filed. The adjudicating authority vide an impugned order para 8, accepts the contention of the appellants by observing as under:- "As regards the assessee's contention that non-filing of declaration of polyester chips as final products in the modvat declaration is procedural irregularity. I find that polyester chips was declared during the material time as intermediate product in their declaration under Rule 57G filed on 25/07/91. This fact has not been controverted in the SCN issued to the assessee. Moreover, the assessee has also filed classification list wherein polyester chips was shown as one of the products manufactured in their factory with a remark that modvat credit would be claimed on the inputs for polyester chips. The said classification list was also approved by the proper officer. I find that in an identical situation, the Tribunal in the case of 'British Physical Laboratories' 1994 (74) ELT 593 held that "Modvat credit - Printed Circuit Boards (PCB) as intermediate product disclosed not only in the declaration filed under Rule 57G, but specifically not mentioned under the column "Final Product" of the declaration - Modvat credit not be denied for procedural irregularity of a purely technical nature particularly when there is no revenue implication." 4. However, the Commissioner confirmed the demand of Rs. 5,18,497/- by observing that the said duty is recoverable in respect of waste not used in the manufacture of Polyester Stape Fibre and Polyester Filament Yarn during the period 26/07/91 to November 1992. The appellants' grievances is that the Commissioner has confirmed the demand altogether on a different ground which was not subject matter of the show cause notice and as such the impugned order should be set aside on this limited issue after considering the above contention. We fully agree with the same.
5. We have gone through the show cause notice, which propose to create the demand on sole ground of non filing of declaration. The appellants contention that the declaration was filed, stands accepted by the adjudicating authority. As such it was not open to the Commissioner to confirm the demands on altogether different ground. We are of the view that the adjudication order has gone beyond the show cause notice.
Thus, it has become unsustainable on this ground, ordered accordingly.
6. The appeal is allowed. The miscellaneous application also stands disposed off.