2005 (9) TMI 203 - AT - Central Excise

Summary

Issues:
1. Application under Section 35F of the Central Excise Act, 1944 for full waiver of pre-deposit amount and stay of recovery.
2. Allegation of clandestine removal of grey fabrics by the appellants.
3. Contention of time-barred demand and suppression of facts.
4. Financial hardship due to factory closure.
5. Previous Tribunal remand and duty confirmation.

Analysis:
1. The appellants filed an application seeking full waiver of pre-deposit amount and stay of recovery under Section 35F of the Central Excise Act, 1944. The appellants are involved in processing fabrics falling under Chapters 54 and 55 of the Central Excise Tariff Act, 1985.
2. The Department alleged that the appellants clandestinely removed grey fabrics, as indicated by a discrepancy in the processed fabrics and grey fabrics received. A Show Cause Notice was issued demanding duty and proposing penalties.
3. The main contention of the appellants was the demand being time-barred and the absence of suppression of facts, as all records were available to the authorities. However, the Department argued that there was a suppression of fact due to the register not indicating the whereabouts of the processed fabrics.
4. The Tribunal noted that this was the second round of litigation, with the matter previously remanded for re-adjudication on the grounds of time-bar. The appellants also cited financial hardship due to the closure of the factory for more than 5/6 years, referencing relevant case laws to support their plea.
5. In considering the issue of pre-deposit under Section 35F, the Tribunal acknowledged the financial hardship faced by the appellants due to the factory closure. It was deemed unreasonable to burden the assessee with a pre-deposit beyond their capacity, especially when it outweighed the interests of Revenue. Consequently, the Tribunal granted a complete waiver from the pre-deposit and stayed the recovery, allowing the appeal to proceed in due course.