Gowri Shankar, Member (T)
1. The duty of Rs. 75.66 lakhs approximately confirmed in the impugned order has already been deposited. The applications are therefore now limited to penalties of equivalent amount imposed under Section 11 AC of the Act on the manufacturer and of Rs. 1 lakh under Rule 209A on its Director, Kishore Musale.
2. Having heard both sides we waive deposit of the deposit of the penalties and stay their recovery for the following reasons.
3. The goods which are printed sheets of plastic, containing the logo of the product advertised, in addition to the printed material, have been classified by the Commissioner as parts of illuminated signs under Heading 94.05 of the tariff. The explanation of the Advocate for the applicant that such a sheet has to be placed in a sign consisting essentially of an external structure with glass in front to house it and a light source placed behind the printed material to ensure visibility and presentation is not rebutted by the departmental representative. If that is the case these goods cannot be prima facie considered to be parts of such signs. The sign is complete without the printed material which is illuminated; that sheet could be removed and replaced by another. The goods are therefore prima fade not part of the signs any more than a cassette tape is part of a tape recorder. The sign is complete as such without the advertising material. In addition, the applicant would be entitled to the Modvat credit of the duty paid on the inputs used in manufacturing of sheets which we are told is about Rs. 48 lakhs. Commissioner’s view that credit would not be available because a declaration was not filed is contrary to the decisions of this Tribunal in Gujarat Ambuja Cements v. CCE, 1996 (85) E.L.T. 154; obviously when the production was cleared without payment of duty (according to the applicant’s belief) there is no question of filing a Modvat declaration.
4. On limitation too, the applicant company has something of a prima fade case. The description in the classification list “printed trade advertising material” is true and prima fade cannot be considered to be misleading, although it is, we agree, not a complete description.
5. We therefore waive deposit of the penalties imposed, staying their recovery. On the claim by the Advocate for the applicant that applicant had been singled out for payment of duty among large number of manufacturers, of at least six names in Mumbai had been given, having regard to the issue is repetitive we accept the request for early hearing. Appeal to be listed for hearing on 11th December, 2000.