2013 (11) TMI 1155 - AT - Central Excise

Availment of the benefit of Notification No. 281/86 and 65/95 - Waiver of Pre-deposit - Penalty u/s 11AC of Central Excise Act, 1944 Held that - It is not in dispute that subsequent Show Cause Notices were dropped by the Department, after taking into consideration its use inside the factory and accordingly their eligibility to the said notification - Prima facie, the applicants are able to make out a case for total waiver of pre-deposit of dues till the disposal Stay granted.

Summary

Issues:
Application for waiver of pre-deposit of duty and penalty under Section 11AC of CEA, 1944.

Analysis:
The appellant sought waiver of duty and penalty amounting to Rs. 5,49,77,939.34 imposed under Section 11AC of CEA, 1944. The appellant, engaged in manufacturing ingots, blooms, Billet, etc., used the goods captively for machinery repair within the factory premises. The appellant claimed to have availed the benefit of Notification No. 281/86-CE dated 02.04.1986 during the relevant period. The appellant's advocate argued that show cause notices were issued repeatedly, alleging wrongful availment of the said notification, but were dropped by the adjudicating authorities. The appellant demonstrated the use of items for machinery maintenance in their reply to the show cause notice.

The Revenue contended that the items produced by the appellant were used as structures, not as part of machinery repair and maintenance. The Revenue emphasized that the appellant must prove eligibility under the exemption notification and referred to the Supreme Court judgment in the case of Mangalore Chemicals & Fertilisers Ltd. vs. Deputy Commissioner -1991 (55) E.L.T. 437 (S.C.). The Revenue disputed the use of the items inside the factory for machinery repair and maintenance.

After considering the arguments and perusing the records, the Tribunal found that the issue involved in the present appeal was similar to the subsequent period's show cause notices. The Tribunal noted that the Department had dropped the subsequent notices after assessing the use of items inside the factory and their eligibility for the notification. Consequently, the Tribunal granted total waiver of pre-deposit of dues adjudged and stayed the recovery during the appeal's pendency. The Tribunal allowed the application for waiver of pre-deposit.