9911796707
TMI Blog1998 (6) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... is a battery and it is not necessary that there must be more than one cell to make up a battery. The company manufactures, inter alia, cell/battery of two volt capacity which is designed for service at a permanent location and supplies electrical energy without any accessory being required for the said purpose. It is contended that each two volt cell by itself is a stationary battery commercially as well as technically and independently functions as one. It is further submitted that a stationary battery is a storage battery designed for service at a permanent location unlike other batteries designed for use in mobile locations like vehicles etc. Stationary batteries are mainly used in sectors like Telecommunication, Power, Defence, Railways ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere stationary batteries and were exempted under the said notification. The goods in question were also correctly described in the Central Excise Gate Passes as stationary cells/batteries and copies of the said gate passes were also duly filed with the Central Excise Department. 4.The respondents in November 1994 issued a show cause notice dated November 16, 1994 requiring the Company to show cause as to why it should not be required to pay a sum of Rs. 4,78,80,531/- for the period from November 1989 to February 1994 in respect of the two volt stationary cells/batteries and further why penalty should not be imposed upon it under Rule 173Q of the Central Excise Rules, 1944. It is alleged in the said show cause notice that the goods in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finery Petrochemical Ltd. v. Collector of Central Excise (A), Calcutta, reported in 1994 (69) E.L.T. 193 (Cal.), has submitted, inter alia, that the expression `hardship' as expressed in Section 35F of the Central Excise Act, would include, prima facie case of an appellant on merits. It has been contended that examination of the order of the Tribunal will indicate that there has been no proper application of mind at all by the Tribunal as to the prima facie merits of the case and the observations of the Tribunal that the appellant before the Tribunal does not have a good prima facie case is clearly erroneous. It has been further submitted that there has also been no consideration as to the question that if the amount which is now sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid case of Bongaigaon Refinery (supra) that the expression `undue hardship' used in Section 35 of the Act would cover a case whether the appellant has got a prima facie case. 11.In such view of the matter, while considering the application made in Section 35F of the Act by the petitioner before the Tribunal, it was incumbent upon the Tribunal also to consider carefully whether the appeal which has been filed by the petitioner before the Tribunal has prima facie merits and that there is a strong prima facie case. 12.After careful consideration of the order of the Tribunal passed on November 6, 1996, I am constrained to hold that the finding of the Tribunal that the present petitioner, who is the appellant before the Tribunal, does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification lists containing the description of the items and showing them as liable to the payment of excise duty only under Item No. 26AA(ia) and these lists were accepted and approved by the Excise authorities, it certainly cannot be said that there was any suppression of fact. The Tribunal did not apply its mind at all to the fact that this classification list in the instant case was also being filed for long period of time for almost 40 years claiming such exemptions and the same was being approved. Under such circumstances, the petitioner/Company certainly also has a strong prima facie case on the question of limitation. 15.It also appears to this Court that the Tribunal has also not considered the question of hardship vis-a-vis th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd E/R-260/96 respectively, are hereby set aside. 20.The Tribunal will consider the application made by the petitioner under Section 35F of the Act along with the application for modification afresh in accordance with law. It is however made clear that this Court already having held that the appellant does have a good prima facie case, the Tribunal while considering such matter, will proceed on the footings that the appellant has got a good prima facie case. 21.It is further made clear that whether the petitioner should be exempted entirely from the payment of the pre-deposit or partly and in what manner the interest of the Revenue will be protected shall be decided by the Tribunal in accordance with law. 22.It may be recorded that si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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