ORDER
Arijit Pasayat, C.J.
1. Petitioner by this writ petition has questioned legality of the order passed by the Customs, Excise & Gold (Control) Appellate Tribunal (in short Tribunal’) while disposing of an application for waiver of pre-deposit, in terms of Section 35F of the Central Excise Act, 1944 (in short the ‘Act’). By Order-in-Original dated 4th February, 2000 passed by the Commissioner of Central Excise, Kanpur (in short the ‘Commissioner’), various amounts of duty and penalty were imposed. So far as the petitioner is concerned, the duty imposed was Rs. 46,28,437/- with an equal amount of penalty under Section 11AC of the Act and Rs. 1 lakh under Rule 173Q of the Central Excise Rules, 1944 (in short the ‘Rules’). Another concern named M/s. Bharat Electical were subjected to penalty and similar amounts were levied on two persons viz. Sh. V.N. Gupta and Sh. Amar Nath Gupta, as penalty. Notices issued to the petitioner indicated that, it was clearing C.I, Castings, without payment of duty, to M/s. Bharat Electricals under the cover of challans prescribed under Rule 57F(4) as intermediate goods used in the manufacture of other excisable goods charged to Central Excise duty at the rate other than nil rate. Department’s view was that the C.I. Castings manufactured on job work basis and cleared by petitioner to M/s. Bharat Electricals, without payment of duty, by availing the procedure provided under Rule 57F(4) for making clearances, without payment of duty, were being used by aforesaid M/s. Bharat Electricals in the manufacture of excisable goods charged to Central Excise duty at nil rate. On the basis of above information, factory premises of the petitioner and M/s. Bharat Electricals were searched and various records and documents were seized. Petitioner was required to show cause as to why action shall not be taken against it for infraction. The stand of the petitioner, in essence, was that there was no question of any infraction. The Commissioner came to hold inter alia as follows :
“Pumps were never produced before the Range Officer. This fact indicated that M/s. BE attempted to conceal this fact in connivance with M/s. SFPL with intent to evade payment of Central Excise duty as payable on C.I. Casting, meant for P.D. Pumps. Only for this reason, M/s. BE never submitted the undertaking as prescribed under Clause (2) of Notfn. No. 214/86-C.E., dt. 25-3-86 as amended and did not submit the evidence that the C.I. Casting got manufactured were used or removed in the manner provided under the said provisions. This was clearly admitted by Shri G.K. Agarwal, Manager and authorised signatory of M/s. BE in reply to Question No. 6 in his written statement dated 29-10-98.”
It appears that the petitioner took somewhat different stand before the Commissioner. First, it was said that instead of claiming exemption under Notification No. 84/94 they claimed the same under Notification No. 214/86. Commissioner concluded that petitioner has not paid Central Excise duty by reason of wilful misstatement, suppression of facts and in contravention of provisions of the Rules, and in violation of provisions of Notification No. 214/86-CE. with intent to evade payment of excise duty. Accordingly, duty and penalty were levied. Petitioner has preferred appeal before the Tribunal and as indicated above had moved for waiver of pre-deposit. On consideration of the rival submissions, Tribunal was of the view that no prima facie case was made out for waiver of entire amount of duty and penalty, as the basic liability to pay the Central Excise Duty is on manufacturer of the goods. However, considering the financial position, direction was given to deposit Rs. 12 lakhs towards duty and Rs. 1 lakh towards penalty, so far as the petitioner is concerned.
2. In support of the present application, it was submitted by learned Counsel for the petitioner that the Notification has not been construed in its proper perspective. In view of the somewhat conflicting stand we wanted to know the exact notification on which petitioner relied. It was submitted that Notification No. 214/86 was the correct notification and it is the notification on which the petitioner relied. It was submitted that if any duty has to be paid, the same was to be paid by M/s. Bharat Electricals and not by the petitioner. Learned Counsel for the Revenue, on the other hand referred to the Notification in question and submitted that the conditions stipulated therein were not fulfillled by the petitioner and therefore the levy is in order. It was submitted that, considering the quantum of duty and penalty involved, direction given by the Tribunal cannot be called to be arbitrary.
3. We have considered rival submissions. We do not think it necessary to go into the factual aspects in detail, as at this stage only prima facie examination of the basic issues has to be done. Tribunal has elaborately dealt with the respective stands of the parties and has come to a conclusion that there was no prima facie case for waiver of full amount of duty and penalty involved, we are in agreement with the views expressed by the Tribunal. However, considering the financial aspects highlighted by the petitioner, we feel deposit of Rs. 8 lakhs (Rs. 7 lakhs towards duty and Rs. 1 lakh towards penalty), without prejudice to the claims involved, by the end of February, 2001 would meet ends of justice. On the deposit being made, the appeal shall be taken up for disposal on merits, if it is otherwise in order.
Writ petition is disposed of accordingly.