ORDER
V.K. Jain, Member (T)
1. Heard Shri B.N. Chattopadhyay, Consultant on the Stay Application filed by the Appellant. He submits that the appellant have neither received the show cause notice nor the personal hearing notice. Thus, they could not defend their case. The impugned order was passed in violation of natural justice. He also submits that the show cause notice was issued after expiry of six months and barred by limitation. He further submits that the Appellant’s factory is closed from 2001 and they are having financial hardship. Relying on the Tribunal’s decision in Sivadeshi Polytex Limited, 2004 (171) ELT 22 (Tri-Del.) wherein the Tribunal has held that financial hardship pleaded by the appellant as factory closed since 2001-in the circumstances of case pre-deposit waived and he also submits that the similar view has been held by the Tribunal in Kalaimagal Alloy Steel Limited, 2004 (166) ELT 67 (Tri.-Chen.). In view of above he submits that the appellant may be given total dispensation of duty and penalty.
2. Shri N.K. Mishra, Ld. JDR reiterates the findings of the Lower Authority and the Commissioner (Appeals). He relied upon Tribunal’s decision in the case of Surindra Steel Rolling Mills, 2003 (155) ELT 175 (Tri-Del.) and Larger Bench decision in the case of Mohinder Steel Limited, 2002 (145) ELT 290 (Tri.-LB). On the financial hardship he has no comment.
3. We have heard both the sides. We observe that the factory of the Appellant is closed from 2001. Taking into the financial hardship as pleaded by the Appellant and relying on the Tribunal’s decision in the case of Swadeshi Polytex Limited and Kalaimagal Alloy Steel Limited, we dispense with the duty and penalty on the Appellant till further orders. Case to be fixed for hearing on 28.3.2005.