ORDER
J.H. Joglekar, Member (T)
1. This application is for waiver of pre-deposit of duty confirmed of Rs.7,65,252/-, modvat reversal of Rs.21,67,562/- and penalty totally amounting to Rs.4,52,000/-
2. The appellants filed classification list seeking benefit of notification 38/97 which granted confessional rate of duty on clearances of specified aggregate value made in a financial year. However, the assessee removed dutiable goods without payment of duty. This is not contested by the applicants. They accept the clearance without payment of duty but submit that he benefit to the notification being grated the duty not paid would come to Rs. 369,467/- The blanket denial of the benefit of the notification and reversal of all the modvat credit taken is also contested.
3. We have heard Shri S.P. Sheth for the applicant and Shri M.H.Shaikh for the Revenue.
4. The assessee’s act of clearance of goods without payment of any duty cannot be caused by inadvertence. The counsel was correct in saying that the benefit of the notification could not be denied even in certain cases of clandestine removal (1993 ELT 1194.) However, during the arguments we find that the duty actually not paid quantified at Rs. 6,69,367/- needs is to be verified. We therefore direct the applicant to deposit Rs.4 lakhs towards the burden of duty and also Rs.2 lakhs towards the penalties imposed upon hem as a pre-condition to hearing of this appeal. The deposits is to the made within six weeks from today. On such deposit being made, the need for pre-deposit of the remaining duty confirmed and penalties imposed shall be waived and their recovery stayed. On such deposit being made the assessee shall be entitled to utilise the modvat credit ordered to be reversed subject to the condition that the balance of Rs.8 lakhs shall be kept (SIC) by them.