ORDER
Jyoti Balasundaram, Member (J)
1. The applicants herein manufacture articles of iron and steel and furniture and parts thereof. During the financial year 2000-2001 they paid full duty and did not claim small scale exemption although their aggregate value of clearances during the preceding financial year was below Rs. 3 crores. Instead they availed of the special procedure for monthly payment of duty under Rule 173GG of the Central Excise Rules during the period July, 1999 to March 2000. They continued this practice even after they were directed by the Superintendent of Central Excise to stop the procedure. They continued paying duty on monthly basis from April, 2000 to September, 2000. In these circumstances a show cause notice proposing recovery of duty and proposing imposition of penalty was issued. Notice was adjudicated by the Additional Commissioner who confirmed the demand along with interest and imposed penalty totalling to Rs. 7,99,781/-. The Commissioner (Appeals) considered the plea of the applicants that they paid duty through RG23A Part II and then again though PLA which amounts to double payment of duty and held this aspect of double payment is to be considered by the divisional Assistant Commissioner. He upheld the penalty on the ground of their recalcitrant conduct. Hence this application for waiver of pre-deposit of penalty and stay of recovery thereof.
2. On hearing both sides and noting the finding of the lower appellate authority regarding the mala fide intention of the applicants in continuing to avail of the facility of fortnightly payment of duty which was not admissible even after the facility was forfeited and also noting that payment was made through accumulated credit after the expiry of the fortnight, I am of the view that the applicants have not made out a strong prima facie case for total waiver. In the totality of the facts and circumstances of the case I direct pre-deposit of Rs. 2 lakhs towards penalty within a period of eight weeks from today. On such deposit being made pre-deposit of the balance penalty shall stand dispensed with and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without further notice.
3. Compliance to be reported on 12th August, 2003.