2004 (5) TMI 207 - AT - Central Excise

Summary

Issues: Application for waiver of pre-deposit of duty and penalty arising from denial of benefit of Notification No. 2/95 for clearances to DTA against foreign exchange payment.

Analysis:
1. The case involved an application for waiver of pre-deposit of duty and penalty amounting to Rs. 50,38,894/- and Rs. 5 lakhs respectively, following the denial of benefits under Notification No. 2/95 for clearances made to DTA against payment in foreign exchange. The Dy. Commissioner of Central Excise confirmed the demand, leading to an appeal before the Commissioner (Appeals) who dismissed the stay application and appeal. The Tribunal, in a previous case, had held that Notification 2/95 covered clearances as per Para 9.10(b), similar to the applicants' case. The Tribunal set aside the Order-in-Appeal and remanded the case to the Commissioner (Appeals) for reconsideration based on the Virlon Textile Mills decision.

2. The Commissioner (Appeals) did not alter the quantum of pre-deposit, citing the lack of documentary evidence from the applicants to support their claim of clearing goods to DTA against foreign exchange payment. Consequently, the stay application and appeal were dismissed for non-compliance with the waiver order. The matter was brought before the Tribunal, where both sides were heard. It was noted that the applicants had prima facie submitted proof of clearance to DTA against foreign exchange before the Commissioner (Appeals). The Tribunal held that a prima facie case for total waiver had been established, leading to the dispensation of pre-deposit of duty and penalty, with recovery stayed pending the appeal.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved, the legal proceedings, and the final decision reached by the Appellate Tribunal CESTAT, Mumbai.