ORDER
Jyoti Balasundaram, Vice-President
1. The application for waiver of pre-deposit of duty of Rs. 68,30,147/- and penalty of equal amount arises out of the order of the Commissioner of Customs, Nagpur. Differential duty demand of CVD has been confirmed as a result of holding that that calcium carbonate coated with stearic acid (with brand name “OMYWACARB 2T SA”) imported by the applicants herein falls for classification under Customs Tariff Heading 3824.90 as “prepared binders for foundry moulds…” and not under Customs Tariff Heading 2530.90 as “mineral substances not elsewhere specified or included” as claimed by the importers.
2. We have heard both sides.
3. Prima facie a case for waiver has been made out for the reason that the applicants cannot prima facie be held to be guilty of suppression or misdeclaration of the product as claimed under CTH 2530.90 on the basis of the acceptance of this claim by the Commissioner (Appeals) vide his order of November 2002 which has been accepted and decided not to be reviewed, as seen from the communication dated 24-12-2002.
4. As regards the demand, within the normal period of limitation, we see force in the submission of the Id. Counsel for the applicants that, since the department did not challenge the assessment and in fact took a conscious decision not to challenge the order passed on the Bill of Entry, as a result of the applicants’ claim under CTH 2530.90 being accepted by Order-in-Appeal of November 2002, the differential duty demands for the normal period of limitation (the Tribunal in February, 2005 has ultimately held that the goods will fall for classification under CTH 3824.90 as contended by the Revenue and not under CTH 2530.90 as claimed by the applicants) is also not sustainable, in the light of the Apex Court’s decision in Priya Blue Industries Ltd v. CC (Preventive) – , which has been followed by this Tribunal in Wipro Ltd v. CC, Chennai (Final Order Nos. 784-785/2005 dated 17-5-2005) . We therefore waive pre-deposit of duty and penalty and stay recovery thereof pending appeal.
Pronounced in Court