1. The application for waiver of pre deposit of duty of Rs. 7,93,029/- arises out of the order of the Commissioner of Central Excise (Appeals), Mumbai. The demand has been confirmed on rubber latex solution. The issue of classification of this product stands settled against the assessee by the Supreme Court's decision dated 1.4.2004 in their own case in Civil Appeal No. 4099/98. The classification stands con finned under Chapter Heading 40.05. The plea of the applicants, before us, is that for the period up to February 1997 the benefit of concessional rate of duty of 15% in terms of Notification 377/86 is available and that for the period thereafter (the demand in this case is for the period October 1986 to May 1988), the benefit of exemption from payment of duty under captive consumption notification 217/86 is available. We findprima facie force in the submission that the applicants are entitled to the benefit of concessional rate of duty of 15% for the reason that the goods have been finally determined to all for classification under Heading 40.05 and the finding of the lower appellate authority that the benefit cannot be extended for the reason that such benefit was never claimed in the classification list filed by the applicants is not prima facie tenable, as the applicants were throughout contended that their product falls for classification either under Chapter 40.01 or under 35.05 and never under Chapter 40.05, and it is only when the decision of the classification under Heading 40.05 by the Apex Court came, they claimed concessional rate of duty under notification 377/86. The Ld Counsel for the applicants states that the concessional rate of duty payable for the period up to February 1997 is approximately Rs. 80,000/-. We direct pre deposit of Rs. 80,000/- (Rupees Eighty thousand only) with a period of eight weeks from today.
As regards the plea of eligibility to exemption under Notification 217/86, subsequent to March 1987, the applicants have made out a strong prima facie case of entitlement the benefit of this notification for the reason that Chapter Heading 59 goods have been specified in the captive consumption notification for final product post March 1987.
Therefore for the period after March 1987 prima facie the benefit under Notification 217/86 is available to the applicants.
2. On pre deposit of Rs. 80,000/- (Rupees Eighty thousand only) ordered above, the requirement of pre deposit of the balance duty shall stand waived and recovery thereof stayed pending the appeals. Failure to comply with the above direction shall result in vacation of the stay order and dismissal of the appeal without prior notice.