2011 (3) TMI 99 - AT - Central Excise

Non-compliance of Section 35F - Elevator versus Lift - Deposit 50% of the duty demanded within 4 weeks - There is no evidence placed on record by the appellants to show that all throughout, the unit was being used as freight elevator or as material handling equipment - neither the import of the passenger lift is covered by the Notification in question nor the passenger lift was established to be a freight elevator - The material on record was totally against such claim(the import of lift in question was covered by the Notification No.53/97-Cus)by the appellants - The show-cause notice was essentially to the effect that the lift is not covered by Notification in question - It was the case of the appellants themselves that though it is a passenger lift, it was being used as material handling equipment and therefore it is covered by the said Notification - The burden, therefore, in this case was specifically cast upon the appellants - There was no question of casting the burden upon the department to prove the negative. Held that The Commissioner (Appeals) was justified for ordering pre-deposit of 50% of the duty and thereafter for dismissal of the appeal for non-compliance of the stay order - Hence in the absence of any infirmity in the impugned order, the appeal fails and is dismissed.

Summary

Issues:
Non-compliance with Section 35F of the Central Excise Act, 1944 for depositing duty, Prima facie case on merits, Interpretation of Notification No.53/97-Cus regarding import classification, Review powers of the Tribunal in relation to its own orders.

Analysis:

Issue 1: Non-compliance with Section 35F
The appeal stemmed from an order directing the appellants to deposit 50% of the duty demanded within a specified period, which they failed to do, leading to the dismissal of their appeal by the Commissioner (Appeals). The appellate authority had discretion under Section 35F to waive or modify the deposit requirement based on facts presented by the party, but in this case, no justifiable grounds were presented for the failure to comply with the deposit order.

Issue 2: Prima facie case on merits
The appellants argued that they had a strong case on merits regarding the classification of an elevator under Notification No.53/97-Cus. However, the original authority found discrepancies in the import documentation, indicating that the elevator in question was a passenger lift, not a freight elevator as claimed. The Tribunal concluded that the appellants failed to establish a prima facie case on merits, as the import did not align with the goods listed in the notification.

Issue 3: Interpretation of Notification No.53/97-Cus
The Tribunal scrutinized the import documentation and found that the elevator did not qualify as a material handling equipment listed in the notification. Despite the appellants' contentions, the evidence suggested that the elevator was used as a passenger lift, not for material handling purposes. The Tribunal emphasized the burden of proof on the appellants to demonstrate compliance with the notification requirements, which they failed to do convincingly.

Issue 4: Review powers of the Tribunal
The Tribunal referenced a previous case to highlight the limitations on review powers concerning its own orders. The appellants' application for modification of the stay order was rejected due to the lack of a prima facie case, and subsequent extensions for deposit were not adhered to, leading to the dismissal of their appeal. The Tribunal affirmed the Commissioner (Appeals)' decision based on the lack of merit and compliance with the deposit requirements.

In conclusion, the Tribunal upheld the dismissal of the appeal due to the appellants' failure to comply with the deposit order and the lack of a strong case on merits regarding the import classification. The judgment underscored the importance of meeting statutory requirements and providing substantive evidence to support claims in legal proceedings.