ORDER
Jyoti Balasundaram, Vice-President
1. The applicants seek modification of the Stay Order No. S/962/WZB/2004/C-I, dated 5-8-2004, directing pre-deposit of the entire demand, dismissing the application for non-prosecution. They submit that the matter had come up earlier on 31-3-2004 and during the hearing, the question was raised as to whether the provisions of Section 35F of the Central Excise Act, 1944 would apply to a proceeding under Section 11D of the Central Excise Act, 1944 and the counsel for the applicants had filed detailed written submissions and prayed for a decision on the basis of such submissions, but the submissions were not put up before the Bench for its consideration. They also point out that the order dated 5-8-2004 was despatched only on 3-9-2004 and therefore, compliance could not be made and reported on 3-9-2004 as directed by the Bench. On the merits of the application, they submit inter alia, that the recovery under Section 11D of the Act was not permissible in the absence of any machinery provisions under that Section during the period in dispute, in the present case viz. 1995-96, 1996-97, 1997-98. The applicants, therefore, seek waiver of pre-deposit of duty of Rs. 7,75,558/- and penalty of Rs. One lakh.
2. The prayer is opposed by the ld. DR who reiterates the findings of the Authorities below.
3. We have carefully considered the rival submissions and perused the records including the written submissions filed by the applicants, which have not been taken into account by the Bench while directing pre-deposit of the entire amount. We are also satisfied that a strong prima facie case for waiver has been made out by the applicants in the light of the Tribunal’s order in Pushpaman Forgings v. C.C.E. [2002 (149) E.L.T. 490 (T)] and the decision of the Madras High Court in Eternit Everest Ltd. [1997 (89) E.L.T. 28 (Mad.)] to the effect that machinery provisions under Section 11D did not exist during the period in dispute. We, therefore, waive the pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
4. Copy of this order should be given to both sides Dasti.