ORDER
V.K. Agrawal
1. This is an application filed by M/s Deepak Castings Pvt. Ltd., for waiver of pre-deposit, of duty amounting to Rs. 3,44,100/- and penalty amounting to Rs. 1 lakh.
2. Shri R. Santhanam, ld. Advocate, submitted that the applicants manufacture M.S.Ingots and hot re-rolled products in induction furnace and re-rolling Mills respectively; that the Commissioner provisionally fixed the Annual Capacity of Production to be 2294MT under Order dt. 9-10-97; that the Joint Commissioner has confirmed differential duty and imposed penalty which has been upheld by the Commissioner (Appeal) under the impugned Order; that the Commissioner had finally fixed the Aunnual Production Capacity also to be 2294 MT which was challanged by him before the Appellate Tribunal which had remanded the matter for re-consideration; that as the final order itself has been remanded, no differential duty liability on the basis of provisional Order can be fastened on the Applicants; that after the Final Order was passed the provisional Order has merged wit hit. He also submitted that the demand is partly hit by time limit as the show cause notice was issued on 3-5-99.
3. Countering the arguments Shri Swatantra Kumar, Ld. DR, submitted that the Commissioner provisionally fixed the Annual Capacity under Order dt. 8-10-97 and as the duty had not been discharged as per this provisional order the differential duty has been demanded from them; that provisional fixing of Annual Capacity Production was not challanged by the Appellants; that the duty under Section 3A of the Act has to be discharged on the basis of the Annual Capacity of Production; that the demand is not hit by time limit since as per Rules 96ZO/96ZP of the Central Excise Rules if the manufacture fails to pay the total amount of duty payable by 31st Day of March, he shall be liable to pay the outstanding amount of duty along with interest and as show cause notice has been issued in May 98 it is within the prescribed period of six months.
4. I have considered the submissions of both the sides. The issue involved in the appeal is highly arugeable. However, the applicants have not made a prima facie case for total waiver of pre-deposit. I, therefore, direct them to deposit a sum of Rs. 1 Lakh towards duty within 8 weeks from today and on complying with this direction, there will be waiver of pre-deposit of remaining amount of duty and entire amount of penalty and the recovery of the same will be stayed during the pendency of the appeal. The matter will come up for reporting compliance on 3-4-2001.