Tribunal grants waiver, stays recovery during appeal, finds duty payment correct, no intent to evade.

The Tribunal granted the appellant's plea for waiver from pre-deposit, waiving duty demand, interest, and penalty for the appeal's hearing. Recovery was stayed during the appeal's pendency, with the stay petition allowed. The Tribunal found the duty paid by the appellant for clearances to another unit for captive consumption to be correct, based on the price to independent buyers. It concluded that there was no intent to evade payment, rejecting the invocation of the longer limitation period under proviso to Section 11A(1).

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Issues:
Application for waiver from pre-deposit of duty demand, interest, and penalty under Central Excise Act, 1944 upheld by Commissioner (Appeals) against appellant - Dispute over assessable value of base paper cleared by appellant's factory to another unit - Invocation of longer limitation period under proviso to Section 11A(1) - Correctness of duty payment basis - Appeal against Assistant Commissioner's order.

Analysis:
The case involves an application for waiver from pre-deposit of duty demand, interest, and penalty under the Central Excise Act, 1944, which was upheld by the Commissioner (Appeals) against the appellant. The dispute revolves around the assessable value of base paper cleared by the appellant's factory to another unit. The appellant had paid duty based on the normal transaction value, while the department contended that duty should have been paid on the basis of 110% of the cost of production as per Rule 8 of the Central Excise Valuation Rules, 2000.

The Tribunal noted that a Larger Bench ruling in the case of Ispat Industries Ltd. v. CCE, Raigad held that duty for goods cleared for captive consumption should be based on the price to independent buyers. Since the appellant had sales to independent buyers, the duty paid for clearances to the other unit for captive consumption was deemed correct. The appellant's argument that duty calculated based on 110% of the cost of production would exceed the duty paid was not considered by the Commissioner (Appeals).

Moreover, the Tribunal found no evidence that the appellant had suppressed facts to evade duty payment, questioning the invocation of the longer limitation period under proviso to Section 11A(1). Citing the judgment in Jay Yuhshim Ltd. v. CCE, New Delhi, the Tribunal concluded that since duty paid by the appellant was available as Cenvat credit to the other unit, there was no intent to evade payment.

Therefore, the Tribunal granted the appellant's plea for waiver from pre-deposit, waiving the requirement of duty demand, interest, and penalty for the appeal's hearing, with recovery stayed during the appeal's pendency. The stay petition was allowed, and the operative portion of the order was pronounced in court.

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