ORDER
Jyoti Balasundaram, Member (J)
1. The applications for waiver of predeposit of duty and penalty arises out of the order of the Commissioner of Central Excise Thane. The Commissioner confirmed the following duties on the following goods:-
[1] Customs Duty of Rs. 29,13,498/- in respect of imported capital goods, such as, machinery etc. required for use in the Ruia Aquaculture Farms Ltd. set up by the applicants as detailed in Annexure “I” to the show cause notice.
[2] Customs Duty of Rs. 33,87,022/- in respect of imported raw material as detailed in Annexure “II” to the show cause notice.
[3] Central Excise Duty of Rs. 21,57,047/- in respect of indigenously procured capital goods as detailed in Annexure “III” to the show cause notice.
These are the three duty demands He has also imposed a penalty of Rs. 63,00520/- under Section 114A of Customs Act, penalty of Rs. 21,57,047/- (equal to the Central Excise duty demand) and penalty of Rs. 8 lakhs on Shri Sharad S. Ruia and Shri Kamal S. Ruia, Director of M/s. Ruia Aquaculture Farms Ltd. and penalties of Rs. 4 lakhs each of the Directors under Rule 209 A of the central Excise Rules 1944 and penalties under Section 112[a] of the Customs Act, 1962.
2. The ground for confirmation of duties and imposition of penalties as set out above is non fulfillment of the condition of Notification No. 196794-Cus dt. 8.12.1994 which was the relevant notification in force at the time of import of capital goods and raw materials by the applicants. In other words it is the finding of the Commissioner that neither the capital goods or raw material imported nor the capital goods indigenously procured were used in the Ruia Aquaculture Farms Ltd. in connection with the operational requirement of M/s. Ruia Aquaculture Farms Ltd., as the applicants did not fulfill their export obligation. The applicants have shown us that the imported goods and indigenously procured goods were put into use in connection with the operational requirement of the Ruia Aquaculture Farms Ltd. but due to total crop failure, they could not fulfill export obligation which does not mean that the preliminary condition of notification was not fulfilled by them. In these circumstances they plead that the predeposit of duty and penalty may be waived.
3. The prayer opposed by the Ld. DR, who reiterates the finding of the adjudicating authority.
4. On hearing both sides and noting the above submissions, we are of the view that me prima facie case for waiver has been made out, particularly in the face of language of the notification and in the absence of any averment or finding that the imported items and indigenously procured raw material are not used in the production. We therefore waive the requirement of predeposit of duty and penalty and stay recovery thereof pending these appeals.
(Pronounced in Court)