2001 (9) TMI 899

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..... Sarkar, JDR, for the Respondent. [Order per : Gowri Shankar, Member (T)]. - After hearing both sides on stay application, we find that the issue is covered by decision of this Tribunal, and therefore with the consent of both sides, taken up the appeals for disposal after waiving deposit of duty and penalty. 2. These two appeals are against two orders of the Commissioner confirming the de .....

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..... peal. Reliance is based upon the decision of the Tribunal in S. Patnaik v. CCE, 2000 (118) E.L.T. 502 to say that when the determination of capacity of the stenter in the applicants' factory was provisional, demand for duty should not be raised. Financial hardship is also pleaded. 5. Tribunal in its Order-in-Appeal No. E/651/2000 of the same appel­lant was concerned with the order of the .....

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..... d accordingly imposes. The Tribunal noted that the goods had been clearly provisionally pending clear classification. Therefore the order of the Commissioner finalising the classification at the same time imposition of penalty could not be maintained. 6. The facts before us are entirely different the duty has been determined in accordance with the provisions of the rules, which, relevant tim .....

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..... t paid on account of financial hardship. We are unable to understand, when the assessee had enough money to run its factory, and buy chemicals and other material required to process the fabric, which would not have returned to the supplier without reasoning the money for such process, financial hardship provided same payment of duty to be paid to the Government, and asked Counsel for the appellant .....

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..... o Rs. 12.40 lakhs. Penalty imposed on the appellant is correspondingly reduced from Rs. 14 lakhs to Rs. 13.5 lakhs. We, however, clarify that these deductions are subject to the condition already mentioned that Commissioner's order has attained finality. The matter is therefore remanded to the Asstt. Commissioner for determining the duty and penalty payable communicating to the appellant. 7.&emsp .....

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