ORDER

1. The present appeal has been filed by the Revenue against the judgment dated 5th September, 2000, passed by the Customs Excise & Gold (Control) Appellate Tribunal (in short "Tribunal"), West Regional Bench at Mumbai in Appeal No. 4081/98. The issue involved in the present case is as to whether the Respondent-Assessee is entitled to modvat credit on low Sulphur heavy stock (in short "LSHS") used in the manufacture of steam which in turn was used for the manufacture of the final product, namely, fertilizer which was fully exempt from payment of excise duty.

2. The Respondent was receiving duty paid LSHS and was availing of modvat credit thereon under the provisions of Rule 57 (B) of the Central Excise Rules 1944 (in short "The Rules"). The LSHS so procured was used in the generation of steam which in turn was exclusively used in the manufacture of fertilizers exempted from payment of excise duty under the Tariff itself.

3. The Revenue issued a show cause notice being F. No. V28(4)324/98/MP dated 18th March, 1998 to the Respondent to show cause as to why the modvat credit availed of by the Respondent in respect of the duty paid on LSHS which is used for generation of steam which in turn is used as fuel in the manufacture of fertilizers which were cleared at nil rate of duty if sold for agricultural purpose should not be disallowed and the duty be not recovered from the Respondent. The Respondent was further required to show cause as to why penalty should not be imposed under the provisions of Rule 173Q(1)(bb) of the Rules.

4. The Respondent filed its detailed reply to the show cause notice submitting that firstly Rule 57B is a specific rule recognizing eligibility in respect of certain inputs, among which the inputs used for generation of electricity or steam are specifically covered by clause (iv) of Sub-Rule 1 of Rule 57B and secondly Rule 57B(1)(iv) contemplates a situation where the inputs are used for generation of electricity or steam, used for any other purpose would also entitle the assessee to avail the modvat credit. Insofar as penalty imposed was concerned, the Respondent submitted that the ingredients of Rule 173Q(1)(bb) are not present in the instant case and, therefore, no penalty was imposable.

5. The Assistant Commissioner being the assessing authority did not accept the objections taken by the Respondent and, accordingly, by its order in Original No. D/23/98 dated 23rd March, 1998, disallowed the modvat credit to the tune of Rs. 1,50,76,569/- in respect of LSHS used in the manufacture of steam which in turn was used in the manufacture of fertilizer which was exempted from the whole of excise duty leviable thereon. The Assistant Commissioner further held that in terms of Rule 57C of the Rules, modvat credit shall not be allowed on such quantity of inputs which were used in the manufacture of final products which were exempt from the whole of the duty of excise leviable thereon or chargeable to nil rate of duty. Since fertilizers were fully exempt from payment of excise duty, the Respondent was not entitled to avail of the modvat credit on LSHS used for manufacturing steam which was used for the manufacture of fertilizers.

6. The Respondent, being aggrieved by the order of the Assistant Commissioner, filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) upheld the order passed by the Authority- in-Original (Assistant Commissioner) and dismissed the appeal.

7. The Respondent, being aggrieved by the order passed by the Commissioner (Appeals), filed appeal before the Tribunal.

8. The Tribunal by the impugned order has set aside the order passed by the Commissioner (Appeals) as well as that of the Authority- in-Original and allowed the appeal filed by the Respondent. Insofar as the contention raised by the Respondent that LSHS was being used for generation of steam which in turn was being used for manufacture of final products, namely, fertilizers was concerned, the Tribunal relying upon an earl