JUDGMENT
Gowri Shankar, Member (Technical)
1. The application is for waiver of deposit of duty of Rs. 71.13 lakhs payable by Asia Polytex (India) Ltd. and penalty on it of equal amount and penalties on Sanjeev Khandelwal, its managing director of Rs. 20 lakhs, Hitesh P. Solanki, its manager of Rs. 15 lakhs.
2. The issue on merits is debatable. However counsel for the applicant produces a letter dated 16.8.2001 of the assessee to the Board for Industrial and Financial Reconstruction which is registered as a reference. I these circumstances, in the light of the judgment of the Supreme Court in Real Value Appliances 1998(5) SCC 544, we do not think that we are permitted by law to ask deposit by this applicant. We waive deposit of the duty demanded for it and penalty imposed on it,s but leave it to the department authorities to pursue to recover the amount, if so advised, in accordance with law.
3. As far as the directors are concerned the Tribunal decision in Z.U. Alvi v. CCE 2000 (117) ELT 69 holding that provision of 209A do not apply to the employees of a manufacturer is cited. The department representative contends that this decision requires reconsideration. However at this stage, we are bound by the ratio of this decision. We also take note of the facthat the Commissioner has not advanced any specific finding regarding liability of penalty on these two appellants. We therefore waive deposit of the penalty and stay its recovery.