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2010 (1) TMI 417 - AT - Central ExciseStay- EOU- The demand was confirmed on the ground that the goods cleared to DTA are not exempted and attract duty 16% adv. The Applicants contended that they have not claimed any exemption under Notification No. 6/2006-C.E., dated 1-3-2006, as amended, and in terms of proviso to Section 5A of the Central Excise Act, 1944 on the clearance of the goods to domestic tariff area by an export oriented unit, Additional Duty of Customs shall be reckoned on the effective rate and not tariff rate. Held that-demand barred by limitation pleaded, however, limitation being mixed question of fact and law, to be gone into at regular hearing. Appellant directed to deposit 50% of demand confirmed, on compliance, pre-deposit of balance duty and penalty waived, recovery thereof stayed.
Issues:
Application for waiver of predeposit of duty and penalty amount, interpretation of Notification No. 6/2006-C.E., applicability of Section 5A of the Central Excise Act, 1944, relevance of Circulars and previous judgments, time limitation for demand, considerations for granting stay, compliance requirements. Analysis: 1. Waiver of Predeposit: The Applicants sought waiver of predeposit of duty and penalty amount imposed by the Commissioner. They argued against the demand, stating that they did not claim any exemption under Notification No. 6/2006-C.E. and that the demand was time-barred. The Tribunal noted that the Applicants had not paid duty on the goods cleared to DTA and that the demand was confirmed based on the non-application of the said Notification. The Tribunal also highlighted the differences between Notification Nos. 2/95-C.E. and 23/2003-C.E., emphasizing the relevant provisions and their applicability to 100% EOUs. 2. Interpretation of Notification No. 6/2006-C.E.: The Tribunal analyzed the provisions of Section 5A of the Central Excise Act, 1944, which governs exemptions for excisable goods. It was observed that the said Notification did not specifically mention its application to goods produced by 100% EOUs and brought to any place in India. The Tribunal concluded that the proviso to Section 5A prevails over the Notification, rendering it inapplicable to such goods. Previous judgments and Circulars cited by the Applicants were deemed irrelevant to the present case. 3. Time Limitation for Demand: Regarding the plea of the Applicants that the demand was time-barred, the Tribunal held that the issue of limitation is a mixed question of law and fact to be examined during regular hearing. The Tribunal found that the Applicants had not established a prima facie case for a total waiver of duty and penalty, considering the facts, circumstances, and financial hardship involved. 4. Considerations for Granting Stay: Citing judgments from the Hon'ble Supreme Court, the Tribunal emphasized the importance of balancing the interests of the Government and the public revenue while granting stays. It highlighted the need for compliance and the potential adverse effects of prolonged non-realization of taxes on the economy. The Tribunal directed the Applicants to deposit 50% of the confirmed demand within a specified period, with the remaining amounts of duty and penalty waived subject to compliance and stay during the appeal's pendency. 5. Compliance Requirements: The Tribunal set a deadline for compliance with the deposit directive and the subsequent actions to be taken. The operational part of the Order was pronounced on a specific date, outlining the timeline for the Applicants to fulfill their obligations. By thoroughly examining each issue raised in the appeal, the Tribunal provided a detailed analysis and decision based on the legal provisions, precedents, and considerations relevant to the case.
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