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2013 (2) TMI 570 - CESTAT DELHINon payment of excise duty - wrongly availing the exemption under Notification No. 108/95-CE dated 28.08.1995 on the basis of forge certificate - seeking waiver of pre- deposit - Held that:- The appellants cleared the subject goods without payment of excise duty under the exemption notification on the strength of the requisite certificate issued by the Executive Head of the Project Implementing Authority i.e. ICICI Bank purportedly countersigned by the Joint Secretary to the Government of India in the Ministry of Finance. It is not the case of the Revenue that the appellants while clearing the subject goods under exemption notification were aware of forgery if any in respect of the signature of the Joint Secretary or that they were aware that Finance Ministry was not the line Ministry for the purpose of the project undertaken by M/s TEIL or the appellants were in conspiracy with M/s TEIL. Thus, prima-facie bonafide of the appellants clearing the subject goods under exemption Notification No. 108/95-CE dated 28.08.95 without the payment of excise duty cannot be doubted. Whether the liability to pay the excise duty would of the certificate issuing authority i.e. ICICI Bank or the main assessee who receive excise free goods (in this case M/s TEIL) or the manufacturer of the subject goods who bonafide cleared them availing the benefit of exemption notification on the basis of forged certificate - Held that:- As this question requires serious consideration because under the normal commercial practice if a requisite certificate is produced alongwith the purchase order the manufacturer/ supplier is prima-facie expected to accept the correctness of certificate and is not expected to first verify the genuineness of certificate before availing the exemption under the notification. Thus, there is a prima-facie case in favour of the appellants. Otherwise also in show cause notice served on the appellants it is writen that M/s TEIL the main assessee before the issue of the show cause notice had deposited the amount of Rs.2,50,38,883/- which was approximately equal to the central excise duty involved on entire quantity of excisable goods received by them duty free on the strength of invalid certificate from various manufacturer including the appellants. From this, it is prima-facie clear that duty amount has already been paid to the Department and the interest of the Revenue is secured - the appellants have made a prima-facie case to justify the waiver of condition of pre-deposit, accordingly, the stay applications allowed - Appeals be listed in due course.
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