Full Judgment
2. We have heard both sides. The contention of the applicants is that insistence upon production of certificate from Nodal Ministry would lead to narrow interpretation of Notification which has been on held not to be permissible, by the Tribunal in the case of Bindawala Electrical Industries Ltd. v. Commissioner of Central Excise (Order No.A/460/KOL/2002 [2002-Taxindiaonline-28-CESTAT-Kol.] and in the case of Asea Brown Boveri Ltd. v. CCE Faridabad (Order No. A/737/03-NBC) reported in [2003-Taxindiaonline-212-CESTAT-Del.]. He submits that the purpose of the notification has been achieved as seen from the letter dt. 17.12.98 addressed to the applicants by the Maharashtra State Electricity Board, which would show clearly the availability of deemed export benefits against supplies made after the loan closing date against the ICB contract covered under the World Bank Loan for Chandrapur T.P.S. Unit.
The other contention is that the demand is duplication of demand raised by the show cause notice dt. 14.2.2000. For both these reasons he prays that the predeposit of duty and penalty may be waived and recovery stayed pending the appeal.
3. The prayer is opposed by the Ld. DR, who draws our attention to the fact that the show cause notice dt. 14.2.2000 was adjudicated by the Commissioner under Order-in-Original No. 17/2000 dt. 1.11.2000 against which the applicants filed appeals to the Tribunal along with applications for waiver and vide order No. C-I/1388-1389/WZB/2001 dt 14.5.2001, the Bench has directed predeposit of approximately 25% of the total demand of Rs. 1.8 crores adjudged against the applicants. He submits that the argument regarding duplication of demand is not correct as seen from the present impugned order wherein the Commissioner(Appeals) noted that the applicants had themselves admitted that the demand raised in the notice dt. 14.2.2000 and raised in the present noticees are on which grounds and the allegations are also different. He also points out that the letter dt. 17.12.98 relied upon by the applicants to show substantial compliance with the requirement of notification is also not in conformity with the requirement of notification. He therefore submits that no prima facie case for total waiver has been made out and prays that applicants may be directed to pre-deposit.
4. On a careful consideration of the submission, and noting the view taken by the Bench in its order cited supra and also considering that the question as to whether the demand is duplication or not, is not one on which prima facie view can be taken, in view of the finding of the Commissioner (Appeals) on the admission of the applicant, [which is contested before us]. Since no prima facie case for total waiver has been made out by the applicant, we direct pre-deposit of Rs. 7 lakhs towards duty within a period of eight weeks from the receipt of this order. On such deposit, the pre-deposit of duty and penalty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice.