Integral Power Packs vs Commissioner of C. Ex.

T.S. Sivagnanam, J.—This appeal by the assessee is directed against the Stay Order No. 150/2012 in Appeal No. E/464/2010 passed by the Customs, Excise and Service Tax Appellate Tribunal (in short "Tribunal"). The appellant/assessee filed the said Miscellaneous Application praying for stay/waiver of pre-deposit for the purpose of entertaining the appeal. The assessee seeks admission of the appeal raising the following questions of law:-

"1. Whether the CESTAT''s impugned order directing pre-deposit of Rs. 6,00,000/- is sustainable when the identical issue was decided in favour of the appellant on limitation and thus there is hostile discrimination?

Whether the impugned order is outside the scope of show cause notice when there is no allegation or foundation for sustaining the reasoning of the impugned order?

Whether the impugned order is correct in ignoring the submissions of the appellant that when the decisions of the Tribunal were in favour of the appellant and ultimately the merits of the issue was finally decided by the Hon''ble Supreme Court against the appellant, the extended period cannot be invoked?"

The Tribunal, by the impugned order directed the assessee to pre-deposit a sum of Rs. 6,00,000/- with a period of six weeks. Challenging the same, the assessee preferred this appeal.

The learned counsel appearing for the appellant submitted that in respect of an identical matter, in the case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation, (1948) 1 K.B. 223 a similar question came up for consideration as to whether extended period of limitation could be invoked by the Department in respect of SSI unit having used the brand name "CANSOFT" belonging to some other person. The Tribunal, by Final Order dated 24-11-2009, allowed the appeal and remanded the matter to the Adjudicating Authority to calculate the duty demand within the normal period and consider the case of imposition of penalty afresh. The learned counsel submitted that this order of the Tribunal in the case of Data Tech Systems v. Commissioner of Central Excise, Coimbatore was placed before the Tribunal and the Tribunal, without considering the same has directed the assessee to pre-deposit a sum of Rs. 6,00,000/-. The learned counsel further submitted that the proprietor of the assessee has now suffered a stroke and had paralytic attack on his left side and no longer running any business and under the care of his spouse.

Mr. Xavier Felix, learned Standing Counsel appearing for the Revenue sought to sustain the order passed by the Tribunal by referring to the reasons assigned by the Tribunal.

We have heard the learned counsel appearing for parties and perused the materials placed on record.

The specific case of the assessee was that in a similar case, the Tribunal, in Final Order No. 1800/2009, dated 24-11-2009, in the case of Data Tech Systems v. Commissioner of Central Excise, Coimbatore held that duty demand within the normal period should be recalculated and imposition of penalty should be considered afresh. Further, it was pointed out that in the case of Final Order No. 162/2010, dated 8-2-2010 (Sumangala Steels (P) Ltd. v. CCE), the Tribunal has held that the time limit for demand of short-paid duty was only six months prior to the period 2000. The learned counsel appearing for the appellant asserts that the decision in the case of Data Tech Systems v. Commissioner of Central Excise, Coimbatore (cited supra) has been accepted by the Revenue.

The Revenue is not in a position to controvert the said submission of the learned counsel appearing for the appellant. The decision in the case of Data Tech Systems v. Commissioner of Central Excise, Coimbatore has been placed before this Court in the typed set of papers. The issue raised by the appellant on the plea of limitation merits to be considered as prima facie case made out by the assessee for the purpose of considering the waiver of pre-deposit. Thus, taking note of the status of the assessee as SSI unit, apart from the prima facie case made out, we are of the view that the assessee would be entitled for complete waiver of pre-deposit. Accordingly, the Civil Miscellaneous Appeal is allowed and the order passed by the Tribunal is set aside. The Tribunal is directed to take up the appeal and consider the same on merits. Till the disposal of the appeal, there shall be a stay of recovery. No coats. Consequently, connected MP is closed.