2012 (6) TMI 280 - AT - Central Excise

Plea for waiver of pre-deposit of duty - demands being raised for fabricated steel structural which has been contended by revenue as the parts of stoplock gate - assessee contended that recently issue has been decided in favor of assessee - Held that - It is found that that the Commissioner (Appeals), vide its impugned Orders dated 12.01.10 decided the issue in the Department s favour, whereas in his recent Order dated 04.04.12 he has decided the issue in favour of the Applicant. Therefore, the issue is debatable. Thus, prima facie, the case is in favour of the Applicant. Therefore, the requirement of predeposit is waived and recovery thereof, is stayed during the pendency of the Appeals.

Summary

Issues: Application for waiver of predeposit of duty, contention regarding fabricated steel structurals, conflicting decisions by the Commissioner (Appeals), marketability of goods as parts, reliance on legal precedents.

Analysis:
The Applicant filed Applications seeking waiver of predeposit of duty totaling Rs.1,07,692/- and Rs.4,65,612/-, contending that the demands against them were related to fabricated steel structurals. The lower Adjudicating Authority had dropped the proceedings initiated against them, but the Commissioner (Appeals) passed conflicting Orders on the issue. The Applicant argued that a previous Tribunal order favored them, while the recent Order by the Commissioner (Appeals) was against them, making the issue debatable. The Applicant's Advocate presented invoices to support the claim that the goods were not just parts but mostly fabricated steel structurals.

The Department, represented by the learned AR, argued that duty was demanded on parts of stoplock gate, asserting their marketability as such. The AR cited legal precedents including a Supreme Court decision and a Tribunal case to support this contention. In response, the Applicant's Advocate reiterated that the majority of the goods were fabricated steel structurals, not just parts, and provided relevant invoices as evidence.

Upon examination, the Tribunal noted the conflicting decisions by the Commissioner (Appeals) - one against the Applicant and the other in their favor. Considering the debatable nature of the issue, the Tribunal found prima facie merit in the Applicant's case. Consequently, the requirement of predeposit was waived, and recovery stayed during the pendency of the Appeals. The Tribunal allowed the Stay Petitions, providing relief to the Applicant.