JUDGMENT
Gowri Shankar, Member (Technical)
1. The applicant is absent and unrepresented despite notice.
2. Duty of Rs. 10.37 lakhs and penalty of Rs. 98,245 are payable by the assessee. Duty has been demanded and penalty imposed on the ground that the appellant did not pay within the time permitted by law the duty demanded on the basis of its capacity determined in accordance with the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998.
3. The contention of the manufacturer in the stay application is that the Commissioner has erred in including in the duty demand one of its two stenters for the period from 9.2.99 to 26.3.99. In the order, the Commissioner has noted that while the stenter was sealed and not in operation prior to 9.2.99, it was unsealed on 9.2.99 and dismantled from 26.3.99. In the absence of anything to show that the stenter was not functioning during this period, he has taken this stenter into consideration in determining the capacity.
4. While the applicant contends that this is erroneous and the stender did not function during this period, no evidence in support is produced. In these circumstances, we find it appropriate to ask the applicant to deposit Rs. 6 lakhs out of the duty demanded within a month from the receipt of this order. Thereupon we waive deposit of the remaining duty and of the penalty, and stay their recovery.