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TMI Blog2000 (6) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... aring both the sides we find that the issue of classification of the steel products manufactured by the appellants is quite arguable from both the sides and no opinion can be expressed at this point without appreciating the submissions made by both the sides in detail. As regards the limitation also it is seen that the appellants have had not taken any steps in intimating the department about their manufacturing activities. They are only relating upon the classification lists filed by the other assessees in support of their arguments that they were under a bona fide belief that the steel seats so manufactured by them were entitled to benefit of exemption notification. The grounds raised by the appellants as regards the limitation also can be gone into only at the time of final hearing of the appeal inasmuch as the appellants have not made out a prima facie case on this aspect in their favour. The appellants' reliance on para 16 of Kerala High Court judgment also does not come to their rescue inasmuch as the issue before their lordships was classification of a particular product wherein it was observed, after taking into note the view expressed by the Board of Revenue that principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded or penalty levied. Where in any appeal under this Chapter the decision or order appealed against related to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions, as he or it may deem fit to impose so as to safeguard the interests of revenue." 7.Therefore, the Tribunal has discretionary authority to dispense with pre-deposit. 8.In the instant case, the prayer in the application is made for dispensing with the condition of pre-deposit of duty amount of Rs. 1,63,40,820.24 and penalty amount of Rs. 16 lakhs and staying recovery thereof during the pendency of the appeal. The pre-deposit is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Assistant Collector, Central Excise, Calcutta "1 Division". The aforesaid statement is made on the basis of Annexure 'E' to the petition wherein the statement of the petitioner company who is giving job work to the petitioner No. 1 is recorded. According to the petitioner, in a similarly placed situation exemption was granted in respect of the other companies and therefore, they are entitled for the same. On account of discrimination, learned Counsel appearing on behalf of the petitioner cited two decisions. One is reported in 1994 (70) E.L.T. 169 (Cal.) (Bajoria Rubber Industries Ltd. v. Collector of C. Ex. Cal. II) and 1987 (32) E.L.T. 367 (Ker.) (Collector of Customs and Central Excise, Cochin v. Calicut Refrigeration Company). 12.By showing the first judgment petitioners wanted to establish that the judicial discipline speaks that the Tax Authority in Bengal is bound by the decision of the Appellate Authority in Bombay. Otherwise, this would lead to discrimination in between the parties at Bombay and Bengal. 13.On the basis of the last part of paragraph 16 of the Second Judgment he contended that consistency in the interpretation of a tariff entry is very desirable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt limited or short paid or erroneously refunded, it can be recovered by the appropriate officer within six months from the relevant date. The expression "relevant date" is defined in the Section itself. But the said period of six months gets extended to five years where such non-levy and levy etc. is "by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or of the rules with intent to evade payment of duty ……". Now, so far as fraud or collusion is concerned, it is evident that the requisite intent, i.e. intent to evade duty is built into these two words. So far as, mis-statement or suppression of facts are concerned, they are clearly qualified by the word "wilful" preceding the words "mis-statement or suppression of facts" which means "with intent" to evade duty. The next set of words "contravention of any of the provisions of the Act or Rules" are again qualified by the immediately following words "with intent to evade payment of duty". It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is wilful and yet constitutes a permissible ground for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription as aforesaid, certain points are to be jotted down hereunder to come to an appropriate conclusion. It is also significant to know what are the circumstances on which the other Courts dispensed with the pre-deposits. 20.Although no one cited a judgment reported in 2000 (117) E.L.T. 539 (Cal.) [Smithkline Beecham Consumer Health Care Ltd. v. C.C.E. (A), (Calcutta)] which was delivered by this Court in respect of dispensation of pre-deposit on the basis of the prima facie case and what would be the materials to be considered for such reason but for the sake of justice I want to draw certain inferences from such judgments. From the referred judgments therein certain principles can be formulated hereunder in respect of dispensation of pre-deposit : (a)Prima facie case not necessarily means that one must have a gilt-edged case which is bound to succeed. Prima facie case always has been held by the Courts to be a case which is arguable and fit for trial and consideration; (b)Prima facie case in merit which is most likely to exonerate him from payment and still Tribunal insists on pre-deposit of the amount it would amount to undue hardship; (c)Prima facie case is the conduct of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 11A of the Act has definitely given a right to the petitioners in respect of limitation. Therefore, without any prima facie basis that the petitioners are avoiding wilfully or evading duty how the Tribunal can take step in respect of the application under Section 11A is unknown to this court. Application of Section 11A of the Central Excise Act has not any independent approach in this case but hidden in the cause of exemption. Therefore, the same cannot be said to be wilful suppression, if any, under the said Section of the Act. Thirdly, there is an explanation as to the factory's balance sheet as well as company's balance sheet which may or may not be acceptable by the Tribunal but the same cannot be treated as an intentional mistake on the part of the petitioners when there is every possibility of exonerating themselves from the payment. In other words, the Tribunal has to enter into the question of exemption and an exemption alone first on the basis of the facts as well as law and if it is found that there is a clear case of exemption, it is not the business of the Central Excise Authority to enter into the question of maintaining the balance sheet properly because the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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