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TMI Blog2010 (12) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner (Appeals) and the appellate Commissioner s decision was accepted by the department. In the result, the appellants did not have to pay any excise duty on the DTA clearances effected by them during the said period of dispute prior to 28-2-05. Even after 28-2-05, the EOU continued to clear their final product to the DTA without payment of duty. These clearances were in excess of their entitlement allowed by the Development Commissioner. Under the relevant Exim policy, the EOU were entitled to clear their finished goods to the DTA on payment of duty at concessional rate to the extent of 50% of the F.O.B. value of exports. For clearances in excess of this limit, they were liable to pay duty at full rate. The department issued show-cause notices for recovery of duty of excise on these clearances which were effected from December, 2006 to 22nd June, 2008. Each show-cause notice was issued within the normal period prescribed under Sec. 11A(1) of the Central Excise Act. These show-cause notices alleged that the appellants were liable to pay duty of excise in terms of the proviso to Sec. 3(1) of the Act without availing the benefit of any exemption notification. The show-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment application in its present form. At this stage, the ld. counsel has proposed to take remedial steps. The appellants have liberty to do so. 3. The next application seeks waiver of pre-deposit and stay of recovery of the adjudged dues. On this application, both sides have argued extensively. To summarise the arguments of the ld. counsel :- (a) The adjudicating authority and the first appellate authority held in favour of the appellants and dropped a similar demand of duty for a period prior to 28-2-05, for which show-cause notices had been issued under Sec. 11A(1) of the Act for recovery of duty on fresh mushrooms cleared to DTA. As the department did not choose to review the appellate Commissioner s order, the appellants believed bona fide that they were not liable to pay any duty on DTA clearances even beyond 28-2-05. In the circumstances, the appellants continued to effect DTA clearances without payment of duty; (b) Both prior to 28-2-05 and thereafter, fresh (dried) mushroom was chargeable to Nil rate of duty as per Tariff (the 6 digits system of nomenclature under the Central Excise Tariff Schedule was replaced by the 8 digits system on 28-2-05). Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n actual levy of duty but depended on the description as excisable goods in the first Schedule to the Central Excise Tariff Act. It is pointed out that the Civil appeal filed against the Hon ble High Court s decision was dismissed by the Apex Court viz. Hind Rubber Factory [2000 (119) E.L.T. A178 (S.C.). Jt. CDR has also claimed support from Tribunal s Referral order dated 20-5-10 in Appeal Nos. E/392-393/2003 [HPCL v. CCE, Guntur] wherein the Hon ble High Court s decision in Hind Rubber Factory [1990 (48) E.L.T. 363 (P H)] case was relied upon and the relevant issue pertaining to excisability of goods was referred to Larger Bench. The referred issue was whether imported, customs duty-paid goods falling in any of the Schedules to the CETA would come within the ambit of the expression excisable goods used in the text of sub-section (1) of Sec. 11D of the Central Excise Act. The ld. JCDR therefore submits that even where Nil rate of duty has been prescribed for any goods classifiable under CETA, the goods are to be treated as excisable goods within the meaning of Sec. 3 of the Central Excise Act. He has also submitted that the appellant being an EOU was very much covered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-10-2009 in W.P. No. 8187 of 2009. A perusal of the Hon ble High Court s order indicates that the appellants plea of financial hardships has to be considered by the Tribunal before disposing of their stay application. The order says that, in the context of considering the plea of financial hardships, this tribunal must bear in mind the state of the economy, namely the liquidity in the market. The appellants have not brought on record any material disclosing the present state of economy. There is no evidence whatsoever of the liquidity in the market. Therefore, we are not in a position to consider the state of the economy while disposing of the present application. The only plea made by the appellants is that they are in a financial crisis and hence not in a position to make any pre-deposit. As rightly pointed out by the JCDR, the balance sheet and profit loss accounts produced by the counsel for the period ending 31-3-2009 cannot disclose the present financial position of the company. We are in December, 2010. The appellants have no case that their audited balance sheets for the year ending March, 2010 are not available. These records, however, have not been produced. We theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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