ORDER
P.G.Chacko
1. This application is for waiver of pre-deposit of duty amount of Rs.67,044/- and penalty amount of RS.1,000/-.
2. I have examined the records and heard both sides. The applicants had take Modvat credit to the extent of Rs.87,044/- on imported inputs on the strength of Bill of Entry on 10.11.1995. The credit so taken was reversed by them on 23.05.1996 allegedly on oral advice receive from the Departmental authorities. On 23.05.1996, the party took re-credit of the duty in their RG 23A Pt.II allegedly on the strength of some order passed by Additional Commissioner of Central Excise in similar matters in favour of the party. The Department, by show cause notice (SCN), challenged the assessee’s action. The party contested the Department’s proposal for disallowing the credit. the Assistant Commissioner adjudicated the dispute and disallowed the entire credit and imposed penalty of Rs.1,000/- on the assessees. The appeal filed against the Assistant Commissioner’s order was rejected by the Commissioner (Appeals) without observing the principles of natural justice. The aggrieved party preferred appeal to this Tribunal and, this Tribunal remanded the matter to the lower appellate authority for de novo decision on the merits of the case, on condition that an amount of Rs.20,000/- be deposited by the party under Section 35f of the Central Excise Act. The Commissioner (Appeals), pursuant the remand order, passed order dated 25.07.2000 dismissing the assessee’s appeal on merits. Hence the present appeal before the Tribunal and the present stay application.
3. I have heard both sides. Ld. Advocate for the applicants has reiterated the grounds of the present application and has submitted that the issue involved in the appeal is covered in favour of the assessee by the decision of the Tribunal in the case of Indo-American Electrical Ltd V Commissioner of C.E.x. Bolpur (1999 (108) E.L.T.797) and has further pointed out that, though this case law was presented before the Commissioner (Appeals), he did not consider the same. In this view of the matter, ld. Counsel submits, the lower appellate authority ought to have remanded the matter to the adjudicating authority in the light of the Tribunals’s decision in Indo-American Electrical (supra). He further submits that the financial condition of the applicants is very bad as evidenced by the profit and loss account produced along with the present application and, therefore, complete waiver of pre-deposit of the outstanding duty amount and penalty amount should be granted.
4. Ld. JDR Shri Swatantra Kumar has opposed the above prayer. He submits that the decision of the lower appellate authority is self-speaking on the merits of the case and, therefore, does not require to be interfered with on the grounds stated by ld.Advocate. He further submits that the documents filed by ld. Advocate in support of the plea of financial hardships do not disclose the latest financial position of the party. He prays for a direction to the applicants for deposit the duty and penalty amounts.
5. I have examined the above submissions I find that the lower appellate authority as not considered the case law cited by the party, though it recorded the citation in the impugned order. The impugned order appears to suffer from non-application of mind to the cited case law. To this extent, the applicants have ea prima facie case. However, their plea of financial hardships cannot be accepted inasmuch as the profit and loss account brought on record along with the present application relates to the period ending 31st March 1999. However, it requires to be noted that an amount of Rs.20,000/- deposited by the applicants in he context of the remanded proceedings before lower appellate authority is still lying with the Department.
6. Having regard to the totality of the facts and circumstances of t he case, I do not find a case for complete waiver of pre-deposit. The applicants are, therefore, directed to deposit an amount of Rs.10,000/- in addition to the pre-existing deposit of Rs.20,000/-, for purposes of Section 35F of the Central Excise Act, within a period of six weeks from today. Upon due compliance with this direction, there will be waiver of pre-deposit of the balance amount of duty and penalty. The matter is posted for report of compliance to 26.04.2001.
(Dictated and pronounced in the open Court.)