TMI Blog2010 (1) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... w, to be gone into at regular hearing. Appellant directed to deposit 50% of demand confirmed, on compliance, pre-deposit of balance duty and penalty waived, recovery thereof stayed. - E/609/2008 - S-16/KOL/2010 - Dated:- 18-1-2010 - S/Shri S.S. Kang, Vice-President and S.K. Gaule, Member (T) REPRESENTED BY: S/Shri R.K. Chowdhury, assisted by B.N. Pal, Advocates, for the Appellant. Shri J.A. Khan, SDR, for the Respondent. [Order per: S.K. Gaule, Member (T)]. - Heard both sides. 2. The Applicants filed this Application for waiver of predeposit of the amount of duty of Rs. 57,12,478.52 and penalty amounting to Rs. 57,12,478.52 ordered by Commissioner, vide Order No. 20/COMMR/CE/KOL-III/2008-09 dated 22-8-2008. The dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l period. It is pertinent that the Notification Nos. 2/95-C.E. and 23/03-C.E. are not similarly worded. The relevant extracts are reproduced below :- Notification No. 2/95-C.E., dated 4-1-1995: "……from so much of the duty of excise leviable thereon under Section 3 of the said Central Excises and Salt Act as is in excess of the amount calculated at the rate of fifty per cent of each of the duties of customs, which would be leviable under Section 12 of the Customs Act, 1962 (52 of 1962) read with any other notification for the time being in force issued under sub-section (1) of Section 25 of the said Customs Act on the like goods produced or manufactured outside India if imported into India." Notification No. 23/2003-C.E., dated 31-3-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication of the said Notification for exemption to hundred percent EOU would be contrary to the provisions of Section 5A which would prevail over the Notification. The decision in the case of Himalaya International (supra) and Board's Circular No. 1 /2004-Cus., relied upon by the Applicants, relate to the rate of duty in case of the goods sold in DTA with or without permission, hence are not relevant to the present case. 8. In respect of plea of the Applicants that the demand is time-barred, we find that the issue of limitation is a mixed question of law and fact which will be gone into at the time of regular hearing. Thus, we find that Applicants had not made out a prima fade case for total waiver of duty and penalty, in view of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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