ORDER
S.S. Kang, Member
1. Learned Counsel appearing on behalf of the applicants fairly submits that he is not pressing for classification of the goods nor the demand of duty on the basis of classification as held by the lower authorities. He submits that he is only pressing for the waiver of the penalty for hearing of the appeal.
2. Learned Counsel submits that in this case duty on roasted nuts were introduced w.e.f., 1.4.97. Before this date there was no duty on Dry roasted nuts. Now these dry roasted nuts are exempted under Notification No. 16/97 – CE dated 3.11.97. He submits that the applicants had already deposited the duty amounting to Rs. 4,66,000/-. He relies on the decision of the Tribunal in the case of Jawahar Metal Industries & Anr. Vs. C.C.E., Meerut & Anr., reported in 2000 (39) RLT 387 (CEGAT) and submits that in the classification, dispute involving interpretation of tariff no penalty under Rule 570 of Central Excise is leviable.
3. Learned JDR appearing on behalf of the Revenue submits that the applicants cleared the dry roasted nuts without payment of duty. He, therefore, submits that the application be dismissed.
4. In this case there was classification dispute in respect of the dry roasted nuts on which the duty was imposed w.e.f. 1.4.97 and the period in dispute is 1.4.97 to 3.11.97. Keeping in view of the facts and circumstances of the case and the decision of Tribunal relied upon by the applicants, prima facie, the balance of convenience is in favour of the applicants. Threrfore, the deposit of whole of the penalty is waived for hearing of the appeal. Registry is directed to list the appeal on 11.9.2001.