ORDER
Jyoti Balasundaram, Member (J)
1. The application for waiver of pre-deposit of duty of Rs. 1,89,827/- for the period 01/03/2001 to 30/09/2001 and penalty of Rs. 10,000/- arises out of the order of the Commissioner (Appeals). The duty demand has been confirmed as a result of holding that the applicants are liable to pay duty of excise leviable on DTA clearances of metallised film capacitors and solar cell modules, etc., @ 50% of the each of the duties of customs leviable under the Customs Act, by computing the duty liability as per Notification 2/95 dated 04/01/1995. According to the applicants the duty amount should be equivalent to the 50% of the aggregate duties of customs and therefore they had paid duty correctly and that the differential duty demand was not sustainable.
2. We have heard both sides.
3. The applicants have made out a strong prima facie case for waiver on merits in the light of the Tribunal’s decision in the case of Futura Polymers Ltd. v. CCE, Chennai 2003 (152) ELT 156 (Del.) wherein it was held that circular No. 512/91/93-Cus dated 18/05/1994 providing for payment of duty equal to 50% of the aggregate the duties of customs (although Notification 2/95 was amended only on 01/03/2002 so as to provide for payment as above) would govern the prior period. Since the Tribunal’s decision cited supra, prima facie, is applicable to the present case, we waive the pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
I have carefully gone through the order recorded by my learned Sister. The period of dispute in this case is March 2001 to September 2001. The issue relates to interpretation of Notification No. 2/95-CE dtd. 04/01/1995 and in particular the meaning of the phrase “Calculated at the rate of 50% of each of the duties of Customs”. It is the contention of the appellants that 50% of the rate of each duty of Customs should b e applied whereas, it is the contention of the Department that 50% of the each of the applicable duty amount is payable. Since, there are conflicting circulars of the Board and the law has been changed from time to time, the matter can be resolved only at the time of final hearing. Therefore, I agree with my learned Sister’s order to waive pre-deposit of duty and penalty and stay recovery thereof during pendency of the appeal.