Pre-deposit waiver in excise dispute turned on prima facie case, yield calculations, and lack of proof of clandestine manufacture.

Waiver of pre-deposit of duty and penalty under section 11AC was granted because the applicant established a prima facie case on aerated beverage yield calculations. The demand was founded on an assumed production yield from concentrate, while the applicant argued that the formula was only an ideal norm and did not account for normal wastage and operational losses. A prior Tribunal decision had already accepted a similar contention, and the burden remained on the department to prove clandestine manufacture without payment of duty. The duty and penalty deposit was waived, and the appeals were listed for hearing on the appointed date.

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Issues: Whether waiver of pre-deposit of duty and penalty under section 11AC of the Central Excise Act was warranted in view of the prima facie case and the earlier Tribunal decision on similar aerated beverage manufacture and yield calculations.

Analysis: The order records that the demand was based on an assumed production yield from beverage concentrate, while the applicant contended that the formula represented only an ideal norm and did not account for normal wastage and operational losses. It was also noticed that a similar issue had already been decided by the Tribunal in favour of the applicant's contention, and that the burden of proving clandestine manufacture without payment of duty rested on the department.

Outcome: Deposit of the duty demanded and the penalty imposed was waived, and the appeals were directed to be heard on the appointed date.

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