ORDER
P.G. Chacko, Member (J)
1. The appellants imported a second hand machinery and filed Bill of Entry on 28-10-04 for its clearance claiming EPCG benefit. The year of make of the machinery was declared as 1996. After inspection of the goods, departmental officers noticed that the year of make of the machinery was 1993. Thus, with reference to the date of importation, the machinery was found to be more than 10 years old and its import required specific licence. The party accordingly applied to the DGFT for a licence in respect of the second hand capital goods. The response of the DGFT was that no licence was required for import of the particular machine. On these facts, after hearing both sides and considering their submissions, we grant waiver of pre-deposit and stay of recovery in respect of the penalty amount.
2. The impugned order has also demanded duty of Bis. 7,47,797/- from the assessee, which is consequential to denial of FPCG benefit. After examining the records, we find that the relevant EPCG licence expressly mentioned the year of make of this specific second hand machine permitted to be imported by the party, as 1996. However, by their conduct, the assessee had already accepted 1993 as the year of make. Hence, apparently, there was misdeclaration by the importer. There seems to be no prima facie case against the demand of duty. However, it is on record that the provisional release of the machine was allowed against a Bank Guarantee for an amount of Rs. 13.1 lakhs. It is said that this Bank Guarantee is live with the department. On the strength of this Bank Guarantee, Id. Counsel for the appellants has pleaded for waiver of pre-deposit and stay of recovery in respect of the duty amount. He has relied on the Tribunal’s Stay order in the case of Impex Trading Company v. CC . We find that, in the cited case, waiver and stay were granted on the ground that the assessee had undertaken to keep the relevant Bank Guarantee live during the pendency of the appeal. In the instant case, the Bank Guarantee amount is nearly double the duty amount and Id. Counsel has undertaken to keep it live till final disposal of the appeal. In the facts and circumstances, we grant waiver of pre-deposit and stay of recovery in respect of the duty amount as well, but on condition that the Bank Guarantee be kept live during the pendency of the appeal.
(Order dictated and pronounced in open court).