ORDER
Jyoti Balasundaram, Member (J)
1. This is an application for waiver of pre-deposit of duty of Rs. 81,50,472.00 confirmed by the impugned order of the Commissioner of Central Excise together with interest. The period of demand is June 1996 to June 1998 and October 2000 to August 2003. Demand has been confirmed on glazed/unglazed ceramic pieces of Mosaic Tiles, holding that they fall for classification under Chapter Heading 69.06/69.05 of the Schedule to the Central Excise Tariff Act, 1985, attracting duty at the appropriate rate.
2. The contention of the applicants inter-alia is that the item in question is not marketable and is an intermediate product in the manufacture of complete mosaic tiles which is made by pasting the ceramic pieces on square sheets of craft paper in different patterns/designs as per the orders of the customer’s order and that the mosaic tiles are used for flooring as well as cladding for walls, and that the complete tile has discharged duty liability under Chapter Heading 68.07 which the Tribunal has found to be the correct classification, in their own case reported in [1996 (84) ELT 502 (Tribunal)]. The present impugned order arises as a result of remand by Tribunal’s order No. C-I/1238-53/99/WZB dt.1.6.99 wherein the Tribunal directed the Commissioner to adjudicate afresh on the marketability and classification of individual pieces of mosaic tiles, giving liberty to both sides to adduce evidence in support of its contention. It is the case of the applicants that no evidence has been lid in by the Department, pursuant to the above remand order, that the item in dispute is marketable and the adjudicating authority has relied on material down loaded from the internet for his finding on marketability, without disclosing this material to the applicants whose evidence of non-marketability in the form of Affidavits has been rejected by the Commissioner. Ld. SDR who relies upon the applicants’ booklet about the disputed product wherein fixing instructions have been given for fixing individual pieces of mosaic tiles, and website material as evidence that the individual pieces are marketable.
3. We have carefully considered the rival submissions, We note that in the Tribunal’s remand order it has been clearly stated, “the Commissioner agrees with the appellant that it does not sell these goods He also does not say that anybody sell or purchases them” (para 3). Therefore prima facie the Ld. SDR cannot rely upon the fixing instruction of the applicants as evidence of marketability. Therefore the only material adduced by the department in support of the stand of marketability is material down loaded from the website which prima facie cannot be relied upon as it has not been disclosed to the applicants. In view of this, and further in view of the fact that for the period October 2000 to August 2003 the applicants paid duty on the complete mosaic tiles (made up of individual pieces) under chapter heading 68.07 which is the classification approved by the Tribunal for their final product, the benefit of captive consumption notification No. 67/95 is prima facie available to the applicants, we hold that a strong prima facie case for waiver has been made out and hence dispense with pre-deposit of duty and stay recovery thereof pending the appeals.
(Pronounced in Court)