2004 (12) TMI 588 - AT - Central Excise

Summary

Issues Involved:
1. Waiver of pre-deposit and stay of recovery in a Central Excise case involving duty amounting to over Rs. 2.3 crores.
2. Eligibility for exemption under Notification No. 6/2002-C.E. for Low Sulphur Heavy Stock (LSHS) used as fuel for electricity generation.
3. Control of the appellant-company by the State Electricity Board.
4. Prima facie case for exemption under the Notification.
5. Financial hardships and pre-deposit amount determination.

Issue 1: Waiver of Pre-deposit and Stay of Recovery
The appeal sought waiver of pre-deposit and stay of recovery concerning a duty amount exceeding Rs. 2.3 crores. The case originated from a show-cause notice issued by the Commissioner of Central Excise regarding duty demand on LSHS procured for electricity generation. The appellant contested the demand under Section 11A of the Central Excise Act.

Issue 2: Eligibility for Exemption under Notification No. 6/2002-C.E.
The central contention revolved around the eligibility for exemption under Notification No. 6/2002-C.E. for LSHS used as secondary fuel for electricity generation. The appellant argued that LSHS qualified as fuel for electricity generation up to a specific production level, meeting the conditions for exemption. The appellant also claimed effective control by the State Electricity Board.

Issue 3: Control of the Appellant-Company by the State Electricity Board
The debate centered on whether the appellant-company was controlled by the State Electricity Board as required for exemption. The appellant presented a letter from TNEB indicating control under a power purchase agreement. However, the tribunal found no statutory evidence of control by the Electricity Board, leading to a prima facie denial of the appellant's claim for exemption.

Issue 4: Prima Facie Case for Exemption
The tribunal analyzed the appellant's arguments and submissions, ultimately concluding that the appellant did not establish a prima facie case for exemption under the Notification. The tribunal found the appellant's case arguable but lacking in merit, dismissing claims of financial hardships as immaterial to the exemption eligibility determination.

Issue 5: Financial Hardships and Pre-deposit Amount Determination
Considering the circumstances where the appellant supplied electricity to a public body, the tribunal directed a pre-deposit of Rs. fifty lakhs within six weeks under Section 35F of the Central Excise Act. The decision aimed to balance the pre-deposit requirement with the appellant's circumstances, emphasizing compliance by a specified date.

This comprehensive analysis of the judgment from the Appellate Tribunal CESTAT, Chennai, delves into the intricate legal considerations and factual assessments underlying the issues raised in the case.