Waiver of pre-deposit and stay granted where suppression was not prima facie shown and limitation was in doubt.

Entitlement to waiver of pre-deposit and stay of recovery turned on whether the concessional rate under Notification No. 6/94 remained available and whether the demand was prima facie time-barred. The Tribunal noted that the Commissioner had not addressed the plea that withdrawal of the Drugs Price Control Order, 1987 did not affect the concession, and it found the allegation of suppression unsustainable because the rescission was not within the assessee's exclusive knowledge and was known to the Department. On that basis, the demand was treated as prima facie barred by limitation, and waiver of pre-deposit was granted with recovery of duty and penalty stayed pending appeal.

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Issues: Whether the appellants were entitled to waiver of pre-deposit and stay of recovery during the pendency of the appeal.

Analysis: The demand was based on the view that the concessional rate under Notification No. 6/94 was unavailable for the relevant period and that the duty became payable at the higher rate until Notification No. 7/95 restored the concession. The Tribunal noted that the Commissioner had not dealt with the plea that withdrawal of the Drugs Price Control Order, 1987 did not affect entitlement to the concessional rate. It also found that the allegation of suppression was not prima facie sustainable because the rescission of the order was not within the exclusive knowledge of the assessee and was within the knowledge of the Department. On that basis, the Tribunal considered the demand to be prima facie barred by limitation.

Conclusion: Waiver of pre-deposit was granted and recovery of duty and penalty was stayed pending the appeal.

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