Judgment
1. By this stay application, the applicant is seeking waiver of pre-deposit of penalty amount of Rs. 1 lakh. Thg duty amount has already been recovered by encashing the bank guarantee. The applicant is also seeking waiver of interest amount of Rs. 3,27,612/-. The applicant had imported capital goods for curing of coffee beans. The applicants' contention is that they have exported partially and part exports could not be completed due to various unavoidable circumstances including heavy losses in local coffee market and other difficulties.He submits that in terms of Tribunal rulings in the cases of (i) Dencap Electronics Pvt. Ltd. v. CCE, Goa 2004 (174) E.L.T. 241 (Tri.-Bang.); (ii) Philips (India) Ltd. v. CCE, Mumbai 2001 (137) E.L.T. 697 (Tri.-Mumbai), the penalty and interest is not leviable if export obligations have been frustrated due to overseas conditions. He prays for waiver of the amounts.
2. The learned SDR submits that no proof of export by way of export promotion or copies of shipping bills have been produced. The Commissioner has examined the reasons and rejected the same.
3. On a careful consideration, we find that the bank guarantee for duty amount has already been enchased. The question in this appeal is with regard to recovery of interest and penalty. In terms of the cited judgments, the interest and penalty is not leviable since there has been part exports and part exports have been frustrated due to overseas conditions. Although the learned SDR distinguished these judgments, the applicability can be seen at the final stage. Prima facie, the levy of interest and penalty is not to be fixed in case the part obligations have been fulfilled and the other part has been frustrated by overseas conditions. The stay application is allowed granting waiver of pre-deposit of interest and penalty amount. Matter can be listed before Single Member Bench whenever it is constituted. There shall be no recovery till the disposal of the appeal.