2015 (3) TMI 1087

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....der this notification. The appellant unit commenced commercial production in the year 2009. At that time they applied to the Department for Central Excise registration. The registration certificate covered only the accessories and not the tubular poles. While commencing production in the year 2009, the appellant were paying duty only in respect of accessories and were availing the exemption under Notification No. 56/02-CE and neither any duty was being paid in respect of the tubular poles nor the exemption under the above-mentioned notification was availed. The reason for this was that the Apex court in its judgment dated 27/3/06 in the case of Hindustan Poles Corporation vs. CCE, Kolkata reported in 2006 (03) LCX 0008 had held the activity....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....B and beside this, the show cause notice also sought imposition of penalty on the appellant under Section 11AC. 1.1 The show cause notice was adjudicated by the Commissioner vide order-in-original dated 04/3/14 by which the Commissioner confirmed the duty demand of Rs. 1,11,74,209/- against the appellant alongwith interest on it under Section 11AB. However, he also allowed the Cenvat credit in respect of the inputs used in the manufacture of steel tubular poles which was to be quantified by the Range Officer. He imposed penalty of Rs. 6,64,546/- on the appellant in terms of Section 11AC (b) of the Act. Against this order of the Commissioner, this appeal has been filed alongwith stay application. 2. Heard both the sides in respect of stay ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....gible for Cenvat credit, which in terms of the Commissioners finding in para 25 of the impugned order, would be about Rs. 80,83,283/-, that the balance amount of duty to be paid through PLA would be exempt under Notification No. 56/02-CE and that in view of this, the impugned order confirming above-mentioned duty demand against the appellant alongwith interest and imposing penalty on them is not correct, that the appellant have strong prima facie case in their favour and hence the requirement of pre-deposit of duty demand, interest and penalty may be waive for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 4. Shri Ranjan Khanna, learned DR, opposed the stay application by reiterating the Commissi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....re is also no dispute that if the appellant while commencing commercial production had paid duty in respect of tubular poles and had opted for exemption under Notification No. 56/02-CE they would have been eligible for the same. Prima facie it appears that the appellant did not pay the duty in respect of clearances of poles at the time of commencing commercial production in the year 2009 in view of the Apex court's judgment in the case of Hindustan Poles Corporation vs. CCE, Kolkata (supra) while they in view of the Apex court's judgment dated 28/3/08 in the case of Prachi Industries vs. CCE, Chandigarh (supra) were liable to pay duty on tubular poles. The show cause notice for demand of duty for the period from January 2012 to November 201....