ORDER
S.L. Peeran, Member (J)
1. For the purpose of hearing this appeal, appellants are required to pre-deposit Rs. 41.07 lakhs. They had taken a stand that the company of the appellant is defunct and have stopped production. On financial hardship, a report was called from the revenue and today the Revenue has filed the report. It is submitted that the company has stopped production from 1-4-98. The unit is defunct. The appellant claim of Modvat credit is to the extent of Rs. 77,688,66.95. On this the Revenue contends that the mailer pertaining to availment of Modvat credit is pending before the Court and a decision is awaited. It is contended by the Revenue that the entire amount are liable to be paid in terms of the Apex Court judgment rendered in the case of Venus Castings (P) Ltd. v. CCE – 2000 (117) E.L.T. 273 (SC) which has held that if an assessee has availed of the procedure under Rule 96ZP (3), at their option they cannot claim the determination of production capacity under Section 3A(4), as these two procedures arc isolated and alternative in nature and the assessee cannot ask for a new procedure combining these two into one.
2. Ld. Consultant submits that if the claim of Modvat and duty is computed on actual production on 2585 MTs then the duty liability will come down drastically and the quantum of duty liability will be less. He submits that the company had stopped production and unit is defunct and it may take time to reopen the unit and loans are awaited from Banks. He submits that the matter be taken up for out of turn hearing by granting full waiver of the pre-deposit.
3. SDR has no objection for fixing the appeal for out of turn hearing.
4. On a careful consideration we notice that the appellants are faced with financial hardship and their company is closed and is defunct. Their claim of Modvat credit is still to be adjudicated by the Court. In the facts and circumstances, we grant waiver of pre-deposit of the entire amount due in this matter. As the revenue involvement is high, we direct the registry to list the matter for out of turn hearing on 11-3-2004. Stay application allowed.