ORDER
G.N. Srinivasan, Member (J)
1. This is an application for stay of collection of duty amounting to Rs. 40,99,569/-, penalty of Rs. 43,71,742/- and redemption fine of Rs. 5,00,000/-. The appellant is a public undertaking engaged in the manufacture of cotton yarn grey falling under chapter 52 and 55. During the period from September, 1995 to July 1997 the Central Excise authorities found that the assessees have not paid certain duties in respect of blended double yarn on the ground that the provisions of the exemption notification 35/95 as amended by notification 84/95 clearly stipulates that the mill has to pay duty. The contention of the assessees was that as long as the final product is cleared from the factory only the exemption notification 35/95 was not applicable. Where the final product is captively consumed, the exemption notification 35/95 was applicable. It was also contended by the assessees before the adjudicating authority that when the unit itself was incurring losses in a number of years previously, the question of collecting notional profit from the assessee did not arise. The counsel further states that by the order of BIFR made on 1.12.1999 the assessee has been declared as a sick industrial unit and the provisions of Section 22 of the Sick Industrial Companies Special Provisions of 1985 is applicable. Therefore, the question of collection of duty does not arise.
2. As against this, the learned JDR would adopt the reasoning of the adjudicating authority.
3. We have considered the rival submissions. In view of the order made by the BIFR on 1.12.1999, we hereby waive the payment of amount demanded.
4. As far as the stay is concerned, the department is free to take any steps as may be available to it under the provisions of law.
(Dictated in Court).