ORDER
S.L. Peeran, Member (J)
1. For the purpose of hearing the appeal, the appellant is required to pre-deposit duty amount of Rs. 28,74,123/-and penalty of Rs. 3,00,000/-. The appellants have already pre-deposited a sum of Rs. 10,00,000/- towards the duty on Tarpaulin’. The total duty on Tarpaulin’ is Rs. 10,92,514.79 and the balance of duty is on Tarpaulin Cloth’. There is no dispute regarding classification of both the items. The appellants contended that the matter was remanded by Final Order No. 139/2003-B, dated 24-2-2003 by which the Tribunal upheld the Revenue’s contention that power has been used for the manufacture of Tarpaulin cloth’. However no finding was recorded with regard to the use of power for the manufacture of Tarpaulin cloth’. The learned Counsel submits that they were not using power for the manufacture of Tarpaulin cloth’ even as per the admitted statement of Shri G.N. Durgaji Rao, Managing Partner. He submits that in terms of the Notification No. 54/87, dated 1-3-1987, the tarpaulin cloth, if it is cleared not exceeding 50 lakhs square metre, is exempted from duty. In the present case, the total clearance of tarpaulin cloth is less than 50 lakhs sq. metre. Therefore no duty can be demanded for tarpaulin cloth. They are liable to deposit duty Rs. 92,000/- towards the tarpaulin. As they have already deposited a sum of Rs. 10 lakhs, therefore he prays for waiver of pre-deposit of balance duty amount.
3. The learned SDK opposes the prayer. He submits that the appellants should pre-deposit the balance amount as they are not eligible for the benefit of the Notification.
4. On a careful consideration of the submissions made by both the sides and on perusal of the Tribunal’s remand order, we find that no finding has been recorded with regard to the use of power for the manufacture of tarpaulin cloth. In terms of the admissions made by the Managing Partner of the company, the power has been used for stitching in all the four sides of tarpaulin cloth to bring into existence of ‘Tarpaulin’. The appellant’s contention is that the tarpaulin cloth is the same but cut to required sizes in length. The process of manufacture of tarpaulin begins with cutting the tarpaulin cloth to required size and stitching it in all the four sides by using power operated heavy duty stitching machines. Prima facie, on perusal of the entire records, a conclusion can be drawn that the manufacture of Tarpaulin begins with cutting of the tarpaulin cloth to required sizes in length and stitching it in all the four sides by using power operated heavy duty stitching machines. Prima facie, the appellants have strong case on merits for claiming the exemption of Notification No. 54/87, dated 1-3-1987 as their total clearance of tarpaulin cloth in length does not exceed 50 lakhs square metre. However, they do not have strong case with regard to payment of duty on tarpaulin. They are still required to pre-deposit a sum of Rs. 92,000/-. Taking into consideration of the overall facts and circumstances of the case and also taking into account of the liability of interest and penalty required to be deposited on tarpaulin, we direct the appellants to pre-deposit a sum of Rs. 2,00,000/- (Rupees Two lakhs only) within a period of three months and on such deposit, the pre-deposit of balance duty and penalty stands waived and recovery stayed till the disposal of the appeal. Call on to report compliance on 24th May, 2006.
5. It is also made clear that if the appellants fails to comply with this order, the appeal shall be liable for dismissal in terms of Section 35F of the Act.
6. The learned Counsel also seeks early hearing of the appeal. In this regard, they have to file an application and in case, they file an application, the same will be posted for consideration on the date of the report of the compliance.
(Dictated and pronounced in the open Court)