Excisability and sick industrial company status supported waiver of duty demand, penalty, and stay of recovery pending appeal

Prima facie waiver of duty demand and penalty was granted where the Tribunal found an arguable case that the goods may be immovable property and therefore not excisable, after the adjudicating authority had not addressed that plea. The stay application was also supported by the company's sick industrial status, because recovery from such companies cannot be enforced by coercive process without consent of the Board for Industrial and Financial Reconstruction. Recovery was therefore stayed during the pendency of the appeal, and the waiver operated for hearing of the appeal.

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Issues: Whether waiver of duty and penalty and stay of recovery should be granted pending appeal on the questions of excisability, marketability, and financial hardship of a sick industrial company.

Analysis: The application arose after remand for de novo adjudication on classification and rate of duty. The Tribunal recorded a prima facie case that the adjudicating authority had not dealt with the plea that the goods were immovable property and therefore not excisable. It also noted that the applicant company had been declared a sick industrial company and that recovery of revenue from such companies cannot be enforced by coercive process without the consent of the Board for Industrial and Financial Reconstruction.

Outcome: Waiver of duty demand and penalty was granted for the purpose of hearing the appeal, and recovery was stayed during the pendency of the appeal.

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