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TMI Blog1987 (11) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... pilfer proof caps of the first schedule to the Central Excises and Salt Act as it then stood whereas the applicants claimed that these products were classifiable under the then Tariff Item 68 of the said schedule. The applicants supplied the impugned products to the manufacturers of the dry cell batteries. These were originally classified by the Department under Tariff Item 68 and accordingly the classification list were approved. Later on the Department issued a show cause notice dated 16-11-1984 demanding duty for the past six months preceding the date of show cause notice on the ground that the products were properly classifiable under Tariff Item 42. The original authority namely the Asst. Collector of Central Excise dropped the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, but have actually availed Rs. 2,32,713.44. The applicants have also a huge outside borrowings of Rs. 14,28,465/- out of which the interest amounts to Rs. 1,57,965/-. This amount of interest has also not yet been paid by us till date to the borrowers due to lack of liquid resources. 4. In view of the foregoing submissions, the learned Consultant for the applicant, submitted that the amount of duty demanded may be stayed unconditionally. 5. The learned SDR, Shri Senthivel appearing for the Department has stated that though he has nothing to controvert against the financial position of the applicants, he has, however to submit that Section 11A gives an unconditional right to the department to demand any short levy for at least six month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. The Hon ble High Court has further held that the arguments of the petitioners that Section 11A is only a recovery provision and it does not enable the original authority under the Act to reopen and reassess is not correct, in view of the Supreme Court s decision in the case of D.R. Kohli and others v. Atul Products Ltd. (1985 20 ELT 21 S.C.). However, having regard to the financial condition of the applicants available on record and nothing being controverted by the Department, we consider that it would be an undue hardship if the applicants are asked to deposit the amount of duty demanded from them in terms of the impugned order. Accordingly, we dispense with the pre-deposit of duty in terms of proviso to 35 F of the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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