ORDER
C. Satapathy, Member (T)
1. Heard both sides. The appeal No. E2621/03 involves duty of Rs. 8,06,040/- and penalty of Rs. 8,06,040/-. A preliminary point was raised whether this case can be heard by a single Member Bench as the duty and penalty together exceed Rs. 10 Lakhs. A reading of Section 35D (3) of the Central Excise Act, 1944 makes it clear that the limit pf Rs. 10 Lakhs applies separately to duty, fine and penalty since these are separated by ‘or’. As such, I am of the view this case can be heard by a Single Member Bench since the duty and penalty involved do not exceed Rs. 10 Lakhs individually.
2. The Commissioner (Appeals) has dismissed the appeals on the ground of non compliance with provisions of Section 35F of the Central Excise Act, 1944. Shri M.V. Ravindran, learned Advocate for the appellants states that the period for duty demand relates to April, 96 to December, 97 and the show cause notice was issued on 7-3-2002. It is his contention that the demand up to 7-3-2002 is clearly time barred. He points out from Annexure A to the show cause notice that the demand for the period April, 96 to December, 97 is Rs. 3,72,582/-only and he also states that an amount of Rs. 82,784/- has already been paid during pendency of the adjudication proceedings.
3. Considering the above, the appellants are directed to pre-deposit a sum of Rs. 3 Lakhs within a period of eight weeks from today and report compliance to the Commissioner (Appeals) thereafter. Subject to such pre-deposit being made and compliance reported, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for decision on merit after affording a reasonable opportunity of hearing to the appellants. The pre-deposit of balance duty and penalty in respect of all the appellants is also waived subject to pre-deposit of Rs. 3 Lakhs ordered above.
4. Appeal is allowed by way of remand in the above terms.