2012 (10) TMI 302 - AT - Central Excise

Dutiability of sample Held that - There is already a decision in their favour by the Commissioner (Appeals) earlier and the subsequent decision has gone against them - If excisability and dutiability itself are required to be considered then what emerges is that the issue is debatable and both views are possible - pre-deposit waived

Summary

Issues:
- Duty demand with interest and penalty imposition in two orders
- Applicability of earlier decisions on excisability of samples
- Relevance of Central Excise Rules, 2002
- Prima facie case in favor of the appellant

Analysis:
The judgment addresses the issue of duty demand, interest, and penalty imposed in two orders, consolidating both appeals due to the same underlying matter. The appellant's advocate argues that previous decisions by the Commissioner (Appeals) favored them, supported by precedents like J.K. Industries Ltd. and Bhansali Engineering Polymers Ltd. The advocate contends that sending samples for testing within the factory does not render the goods excisable. On the contrary, the Departmental Representative (DR) asserts that pre-2002 decisions are irrelevant post the Central Excise Rules, 2002 introduction, citing the manual on Central Excise Rules and the Prestige HM Polycontainer Ltd. case.

The Tribunal scrutinizes the submissions and finds the DR's cited decision irrelevant as it did not address the dutiability of samples. Noting the conflicting decisions by the Commissioner (Appeals) and the relevance of the Bhansali Engineering Polymers Ltd. case on excisability, the Tribunal acknowledges the debatable nature of the issue. Considering the possibility of multiple interpretations on excisability and dutiability, the Tribunal leans towards a prima facie case in favor of the appellant. Consequently, the Tribunal waives the pre-deposit requirement and grants a stay on the recovery of dues during the appeal proceedings, emphasizing the appellant's prima facie case in their favor.