ORDER
G.R. Sharma
1. Arguing the cases for waiver of pre-deposit of penalty of Rs.2 lakhs on the applicants, Shri K.K.Anand, 1d.Advocate submits that the matter was earlier decided by the Commissioner who dropped the proceedings against the applicants. Others against whom the penalties were imposed filed appels before the Tribunal. The Tribunal remanded the matter to the Commissioner. He submits that the Commissioner while deciding the issue in the remand order imposed a penalty of Rs.2 lakhs on the applicants. He submits that since the proceedings had been dropped earlier by the Commissioner. No appeal was filed before the Tribunal by the appellant and the order passed by the Commissioner in 1990 dropping proceedings against the appellants had become final as the department had not filed any appeal against that order.
2. Ld.Counsel also submits that in the instant case the penalty has been imposed on account of demand of additional excise duty. He submits that in the case where the demand for additional excise duty was confirmed, the penalty could not be imposed before the amendment of law. In support of this contention, he submits that the issue was decided by the Hon’ble Delhi High Court in the case of Pioneer Silk Mills (P)Limited reported in 1995 (80) ELT 507. He, therefore submits that no penalty was imposable on the applicants and prays that the pre-deposit of penalty may be waived.
3. Shri S.N.Singh, 1d.DR submits that the Tribunal had set aside the order passed by the Commissioner in 1990 and since that order was set aside, the Commissioner had rightly re-examined the issue and imposed penalty on the applicants. Ld.DR submits that insofar as imposition of penalty in case of additional duty of excise is concerned, there is decision of the Gujarat High Court in the case holding that the penalty could be imposed. He also submits that there are decisions of other courts also in the issue supporting the department’s view. He, therefore prays that the applicants may be directed to deposit the entire amount of penalty.
4. We have heard the rival submissions. On careful consideration of the submissions made, we find that on both counts, i.e.finality of the order of the Commissioner passed in 1990 against which no appeal was preferred by the department as also non imposition of penalty in case of demand of additional excise duty before the amendment of law, the applications have good prima facie case. In the Circumstances, we waive pre-deposit of penalty and stay recovery thereof during pendency of the appeal.
5. The matter should come up for regular hearing on 10.5.2001.