2014 (5) TMI 376 - AT - Central Excise

Waiver of pre deposit - Denial of the benefit of Notification No.45/86-CE - Suppression of facts - Bar of limitation - Held that - Applicants had filed necessary declaration before availing the benefit of the Notification, therefore, prima facie the applicants have a strong case on time bar. Further, we find that some period of the demand is within the normal period of limitation - Conditional stay granted.

Summary

Issues: Delay in filing the appeal, condonation of delay, classification of goods under Central Excise Tariff, benefit of Notification No. 45/86-CE, suppression with intent to evade payment of duty, time-bar, pre-deposit of duty, waiver of pre-deposit, stay of recovery during appeal.

Delay in Filing the Appeal - Condonation of Delay:
The applicant filed an application to condone the delay in filing the appeal, citing non-receipt of the adjudication order until 24.12.2010, despite the order being passed on 2.4.2008. The applicant claimed that the order was sent to an old address, while they had informed the Revenue of a new address for communication. The partner had filed the appeal within the normal period of limitation. The Revenue failed to produce evidence of service of the adjudication order, leading to the condonation of the delay in filing the appeal.

Classification of Goods under Central Excise Tariff - Benefit of Notification No. 45/86-CE - Time-Bar:
The demand was confirmed by denying the benefit of Notification No. 45/86-CE, asserting that the goods were classifiable under Heading 5605.90 of the Central Excise Tariff, while the applicant argued for classification under Heading 5605.10 to claim the benefit of the Notification. The demand invoked the extended period on grounds of suppression with intent to evade payment of duty for the period March 1990 to April 1992, with a show cause notice issued on 20.2.1992. The applicants contended that they had filed the necessary declaration before claiming the Notification's benefit, making the suppression allegation unsustainable. The demand beyond the normal period of limitation was deemed time-barred.

Pre-Deposit of Duty - Waiver of Pre-Deposit - Stay of Recovery during Appeal:
The Revenue relied on a test report to support the classification of goods under Heading 5605.90. However, the Tribunal found that the applicants had a strong case on time bar as they had filed the necessary declaration before availing the Notification's benefit. A portion of the demand fell within the normal period of limitation. Consequently, the applicants were directed to deposit Rs. 5,00,000 within eight weeks. Upon this deposit, the pre-deposit of the remaining dues was waived, and the recovery was stayed during the pendency of the appeals, with compliance required by a specified date.