2. The appeal in which the application has been filed in against the order of the Commissioner passed in pursuance of the order of the Tribunal remanding the matter to him.
3. The questions for consideration in this appeal are whether the appellant could import, without payment of duty in terms of notification 204/92, fabric, which did not correspond in terms of denier with the specifications in the DEEC, and whether the fabric was covered by the description in the import licence. The Commissioner has held against the appellant on both counts.
4. On considering the stay application in the appeal that the applicant first filed, the Tribunal, finding that the issues were arguable, granted waiver of deposit of penalty, noting that there was no application for waiver of deposit of duty. Since there is no change in the circumstances, it would be equitable for us to come to the same prima facie conclusion. In addition, the fact that the department has accepted the same import licence for clearance of a consignment of dyed fabric that the applicant earlier imported also prima facie supports its contention that the licence, issued for import of "dyed and printed fabrics," would cover fabrics that are either dyed or printed.
Accordingly, we waive deposit of the penalty of Rs 2.00 lakhs and stay its recovery.
5. The Commissioner has also fixed the redemption fine of Rs. 11.80 lakhs on the goods that had been ordered to be released in his earlier order. The contention of the counsel for the applicant is that, since on the adjudication there was no redemption fine, the redemption fine cannot now be imposed. He relies upon the decision of the Tribunal in Atul Glass Industries Ltd vs CCE 1999 (114) ELT 597. In the light of the ratio of this decision, the contention of the departmental representative that the Commissioner, while adjudicating the matter now, is not bound by the past adjudication cannot prima facie be entertained. We therefore waive deposit of the fine also, and stay its recovery.