2004 (2) TMI 603 - AT - Central Excise

Summary

Issues:
- Application for waiver of pre-deposit under Section 11D of the Central Excise Act and penalty imposition.

Analysis:
The case involved an application by M/s. S.B. Packaging Ltd. for the waiver of pre-deposit of a demanded sum under Section 11D of the Central Excise Act and a penalty. The appellant's representative argued that the amount payable under Rule 57CC is not a duty, citing a previous judgment by the Appellate Tribunal. They contended that the recovered amount under Section 11D is not considered duty and highlighted that they had already paid a portion of the demanded sum. Therefore, they requested the waiver of the remaining duty amount and the entire penalty.

In response, the learned S.D.R. opposed the prayer, arguing that if the amount recoverable under Section 11D is not classified as duty, the provisions of Section 35F of the Act, regarding pre-deposit, would not be applicable to stay the recovery of that amount.

Upon considering the arguments from both sides, the Tribunal referred to the proviso to Section 35F of the Act, which allows for the dispensation of duty deposit in cases where it would cause undue hardship. The Tribunal noted that if the amount recoverable under Section 11D is not considered duty, the provisions of Section 35F would not be applicable. Consequently, the Tribunal found the application for waiver of pre-deposit of the confirmed amount to be not maintainable and rejected it. However, the penalty imposed on the applicants was stayed during the appeal's pendency, with the appeal scheduled for a future hearing date.