2006 (5) TMI 384 - AT - Central Excise

Summary

Issues:
1. Application for waiver of pre-deposit of duty and penalty.
2. Discrepancy in demand of duty under Customs Act and confirmation under Central Excise Act.
3. Tribunal's order granting opportunity to Revenue for action under Central Excise Act.
4. Granting waiver of duty and penalty for appeal.

Analysis:

1. The applicant filed an application seeking waiver of pre-deposit of duty amounting to Rs. 2,19,146/- and penalty of Rs. 40,000. The impugned order was based on a show cause notice demanding customs duty under Section 28 of the Customs Act, which was later confirmed as excise duty under the Central Excise Act. It was highlighted that a previous Tribunal order had set aside the demand under the Customs Act for the same goods now subject to Central Excise duty. The applicant requested waiver of duty based on these grounds.

2. The Revenue contended that a previous Tribunal order from 20-10-2003 had allowed them an opportunity to take action under the Central Excise Act regarding seized goods. Subsequently, the adjudicating authority confirmed the demand for Central Excise duty, despite the initial show cause notice being related to customs duty under the Customs Act. This discrepancy in the legal basis for the duty demand raised concerns regarding the justification for the duty and penalty.

3. Upon examination, it was noted that the show cause notice issued initially was for customs duty under the Customs Act, whereas the impugned order confirmed duty under the Central Excise Act. Given this discrepancy, the appellants were deemed to have a strong case for waiver. Consequently, the duty and penalty were waived to facilitate the appeal process. The Tribunal acknowledged the need for fairness and consistency in the application of duty demands and penalties.

4. The Tribunal's decision to grant waiver of duty and penalty was based on the clear discrepancy between the original show cause notice issued under the Customs Act and the subsequent confirmation of duty under the Central Excise Act. By allowing the waiver, the Tribunal aimed to ensure that the appeal process could proceed fairly and without undue financial burden on the appellants. The stay petition was consequently allowed, emphasizing the importance of upholding procedural fairness and legal consistency in duty-related matters.

This detailed analysis of the judgment highlights the key issues surrounding the application for waiver of duty and penalty, the discrepancy in legal grounds for duty demands, the Tribunal's consideration of previous orders, and the ultimate decision to grant the waiver for the appeal process.