2008 (10) TMI 471 - AT - Central Excise

Issues:
Interpretation of Notification No. 23/03-CE for duty exemption eligibility under serial No. 3 or serial No. 4.
Validity of demand of duty and penalties imposed by Adjudicating Authority.
Compliance with stay order under Section 35F of the Central Excise Act, 1944.
Applicability of Notification No. 29/04-CE and Notification No. 30/04-CE for duty rates and exemptions.
Bar on demand of duty due to limitation.

Interpretation of Notification No. 23/03-CE:
The case involved a dispute regarding the eligibility of the appellant to clear goods under serial No. 3 or serial No. 4 of Notification No. 23/03-CE. The appellant, a 100% EOU Unit engaged in manufacturing cotton yarn, argued for clearance under serial No. 3 based on the condition that the goods are not wholly exempt from excise duties. The revenue contended that the goods were covered under serial No. 4 as they were wholly exempted from duties under another notification. The Tribunal found that the goods were not wholly exempt from duty and fell under serial No. 3 of the notification, allowing the appellant's appeal for waiver of pre-deposit of duty and penalty.

Validity of Demand of Duty and Penalties:
The Adjudicating Authority had confirmed the demand of duty and imposed penalties on the appellant. The Commissioner (Appeals) directed the appellant to deposit a specified amount towards duty and penalty. However, the appeal was dismissed for non-compliance with the stay order under Section 35F of the Central Excise Act, 1944. Upon review, the Tribunal found that the appellant had a prima facie case for waiver of pre-deposit as the goods were not wholly exempt from duty. The matter was remanded back to the Commissioner (Appeals) for a fresh decision on merits without any pre-deposit.

Compliance with Stay Order under Section 35F:
The appeal was dismissed initially due to non-compliance with the stay order under Section 35F of the Central Excise Act, 1944. However, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for a fresh decision on merits without requiring any pre-deposit, as the appellant had made out a prima facie case for waiver of duty and penalty.

Applicability of Notification No. 29/04-CE and Notification No. 30/04-CE:
The Tribunal analyzed the applicability of Notification No. 29/04-CE and Notification No. 30/04-CE concerning duty rates and exemptions. It was observed that while Notification No. 30/04-CE provided exemptions subject to certain conditions, the goods in question were covered under Notification No. 29/04-CE, which offered a concessional duty rate of 4% Adv. The Tribunal concluded that the goods were not wholly exempt from duty and fell under serial No. 3 of the notification, supporting the appellant's case for waiver of pre-deposit.

Bar on Demand of Duty Due to Limitation:
The Tribunal noted that part of the demand of duty amounting to Rupees Twenty two lakhs was barred by limitation. Considering this, the Tribunal held that the appellant had established a prima facie case for the waiver of pre-deposit of duty and penalty. The Commissioner (Appeals) was directed to decide the matter afresh on merits without any pre-deposit requirement, emphasizing that the Tribunal's observations should not influence the final decision on merit. The appeal was allowed by way of remand, disposing of the stay application.

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