2009 (5) TMI 653 - AT - Central Excise

Stay/Dispensation of pre-deposit - Exemption - Burden of proof - Held that - it is apparent that the demand raised has no leg to stand, certainly, it would be undesirable to require the assessee to deposit full or even substantial part of the demand. However, a waiver of pre-deposit, which admittedly relates to the payment of excise duty is sought on the basis of exemption notification, then the assessee has to make out a prima facie case regarding the same, besides establishing financial hardship - The applicant having failed to make any prima facie case for the grant of waiver, the application is liable to be dismissed.

Issues:
1. Classification of goods under Chapter Heading 8429.00 of the Schedule to the Central Excise Tariff Act, 1985.
2. Denial of benefit under Notification No. 108/95 dated 28-8-95 due to clearance of goods to the contractor instead of the project.
3. Interpretation of the exemption notification for goods supplied to a project financed by international organizations.
4. Requirement of sufficient evidence to claim exemption under an exemption notification.
5. Granting of stay or waiver of pre-deposit in cases involving exemption notifications.

Analysis:

1. The appellants were engaged in manufacturing excavators, loaders, and earthmoving machinery classified under Chapter Heading 8429.00. The dispute arose when they cleared earthmoving machinery without duty payment under Notification No. 108/95 dated 28-8-95. The department issued a show cause notice alleging that the goods were not cleared to the project but to the contractor.

2. During the hearing, the appellants argued that clearing goods in the contractor's name should not disqualify them from availing the exemption under the notification. They presented a certificate indicating the purchase was for the project, not just the contractor. The department contended that there was no evidence of goods being purchased for the project to qualify for the exemption.

3. The Tribunal analyzed the exemption notification's language, emphasizing that goods must be intended to be supplied exclusively to the project to qualify for the exemption. Merely purchasing goods in the contractor's name, even for the project's use, does not meet the exemption criteria. Previous decisions cited were distinguished as they involved goods supplied directly to the project financed by international organizations, unlike the current case.

4. The Tribunal highlighted the requirement for the assessee to provide sufficient evidence to claim exemption under a notification. The certificate produced indicated the goods were supplied to the contractor, not the project, leading to the denial of the stay application and waiver of pre-deposit.

5. It was reiterated that each case involving exemption notifications must be considered on its merits, and past decisions on similar issues do not create a binding precedent. The Tribunal emphasized the need for a prima facie case and financial hardship to grant a waiver of pre-deposit, which was not established in this case, leading to the dismissal of the application.

In conclusion, the Tribunal ruled that the appellants must comply with the pre-deposit requirement within a specified period, emphasizing the importance of meeting the criteria for exemption under the law.

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