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2014 (2) TMI 356 - HC - Central ExciseWaiver of a pre-deposit of duty - fabrication and erection of structural glazing - curtain wall/structural glazing - Imposition of interest and penalty - Whether in the facts and circumstances of the case, the Tribunal was right in holding that the Appellants did not make out a prima facie case for total waiver of pre-deposit - Held that:- assessee has been following judicial pronouncements to decide if the goods were liable to excise duty, the judgment in Man Structurals [2001 (4) TMI 87 - SUPREME COURT OF INDIA] could not have escaped its notice. Hence, assessee could not have required the exposition of law by a Larger Bench in Mahindra and Mahindra to understand that the goods were liable to excise duty. Since an application for rectification is pending before the Tribunal in its Bangalore Bench, we are not expressing a final view on the correctness of this line of reasoning. However, we may only observe at this stage that what the Tribunal clearly missed in its Bangalore decision was the fact that the decision of the Supreme Court in Man Structurals found fault with the order of the Tribunal on the ground that the Tribunal had merely proceeded on the basis that structurals are not exigible to excise duty without considering in each case as a matter of fact whether new and identifiable goods which were marketable had come into existence. A prima facie case was made out by the Appellants for the grant of a complete waiver of pre-deposit of duty. We accordingly set aside the impugned order of the Tribunal insofar as it declines to grant a waiver of pre-deposit of duty and direct that the Appellants shall be heard without requiring the Appellants to deposit the duty of Rs. 28,12,634 - Decided in favour of assessee.
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