2009 (1) TMI 583 - AT - Central Excise

Summary

Issues involved: Application for waiver of pre-deposit of duty and penalties u/s Notification No. 4/2006-C.E. as amended for cement cleared under concessional rate of duty.

Summary:
The applicant sought waiver of pre-deposit of duty and penalties for clearing cement in 50 Kgs. bags under concessional rate of duty. The Commissioner confirmed demand of duty and penalties as the goods were not used for Industrial Consumers and Institutional Consumers. The Tribunal noted that the duty determination is as in the case of goods cleared in other than packaged form if retail sale price is not declared. The Commissioner found the cement was used for construction purposes.

The applicant cited a Tribunal decision stating construction is also an industry. They referred to a Stay Order granting unconditional stay on an identical issue. The Tribunal observed that the notification does not prescribe end-use conditions and noted decisions in favor of the assessee in certain Commissionerates. Benefit of exemption was granted by the Chennai Bench of the Tribunal to one of the applicants.

Considering the arguments and precedents, the Tribunal found the applicant established a prima facie case for waiver of pre-deposit of duty and penalties. Therefore, pre-deposit of duty and penalties was waived until the appeal's disposal, and the stay application was allowed.