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2013 (10) TMI 58 - HC - Central ExciseConcessional Rate of Duty Notification No. 29/2004 - Assessee was engaged in manufacturing of Tents nomenclated as Tent Extendable falling under Chapter 63 of the Central Excise Tariff Held that - There was no findings recorded in the order in original that the goods were containing any textile material - The use of aluminum pipes to hold the tents will not prima facie take them out of the notified goods for deny the concessional rate of clearance of goods. Waiver of Pre Deposit Held that - Relying upon Standard Niwar Mills v. Commissioner of Central Excise 2013 (10) TMI 47 - CESTAT NEW DELHI - The petitioner had made out prima facie case for waiver of the pre-deposit of the entire amount as a condition for hearing of the appeal before the Commissioner of Appeals and that the order to deposit 25% of the duty was not only against the strong prima facie case but will also in the facts and circumstances of the case cause serious prejudice to the petitioner. - stay granted.
Issues:
1. Interpretation of Section 35B and 35G of the Central Excise Act for maintainability of appeals. 2. Eligibility of the petitioner for concessional rate of duty under Notification No.29/2004-CE. 3. Use of metallic parts in manufacturing 'Tent Extendable' affecting the benefit of the notification. 4. Consideration of aluminum pipes and joints as part of the notified goods for concessional rate. Interpretation of Section 35B and 35G: The judgment delves into the interpretation of Section 35B and 35G of the Central Excise Act regarding the maintainability of appeals. It is argued that while an appeal to the High Court under Section 35G is allowed against every order, an appeal to the Central Excise and Service Tax Appellate Tribunal (CESTAT) under Section 35B is only permissible against the final order under Section 35A of the appellate authority. The differing interpretations by the Tribunal on these sections are highlighted, emphasizing the need for clarity in the appellate process. Eligibility for Concessional Rate of Duty: The petitioner, engaged in manufacturing 'Tent Extendable,' sought the benefit of concessional rate of duty under Notification No.29/2004-CE. However, an issue arose when a show cause notice alleged the use of metallic parts in the tents, potentially disqualifying the petitioner from the notification's benefits. The Adjudicating Authority noted the presence of metallic parts and the alleged suppression of facts regarding the clearance of metal products alongside tents, raising concerns about the petitioner's eligibility for the concessional rate. Impact of Metallic Parts on Notification Benefits: The presence of metallic parts in the manufactured tents was a crucial factor affecting the petitioner's eligibility for the concessional rate of duty. The order in original highlighted the use of metallic parts as grounds for excluding the petitioner from the benefits of the notification. This issue was central to the dispute, with the petitioner contesting the adverse findings and seeking relief based on the specific components used in the manufacturing process. Consideration of Aluminum Parts in Notified Goods: The judgment extensively discussed the relevance of aluminum pipes and joints in the context of the notified goods eligible for concessional rates. Citing a previous case, it was argued that the use of aluminum pipes for holding tents should not automatically disqualify the petitioner from availing the benefits of the notification. The Tribunal's findings in a similar case were referenced to support the petitioner's claim that the aluminum parts were integral to the tents and should not preclude them from the concessional rate. In conclusion, the High Court allowed the writ petition, setting aside the order directing the petitioner to deposit 25% of the duty as a pre-deposit condition. The court granted a stay on 100% of the pre-deposit requirement for hearing the appeal, acknowledging the petitioner's prima facie case for waiver. The judgment emphasized expeditious resolution of the appeal within eight weeks, ensuring a swift adjudication process for the petitioner.
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