TMI Blog1999 (1) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 as a pre-condition of hearing of their appeal. The total amount of duty confirmed by the impugned Order of the Commissioner was to the tune of Rs. 4,78,80,531.00 and penalty imposed was to the tune of Rs. 50 lakhs. Subject to the above deposit of Rs. 2 crores as directed, the balance amount of duty and penalty was waived during the pendency of the appeal and the recovery of the same was stayed. Thereafter the applicant filed a Miscellaneous Application for modification of the said Order which was dismissed vide Order No. M-95, dated 4-3-1998. However, the time for deposit was extended up to 30-4-1998. 1.2 The above two Orders were challanged by the applicant before the Hon ble High Court of Calcutta by way of filing a Writ Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the place where they have to be used, number of such stationary cells are put together and joined so as to add the required target of electricity. He explains that each cell is of two volts capacity which converts chemical energy into electrical energy and each such cell is capable of supplying electrical energy without accessories. Such stationary cells are nothing, but stationary batteries required to be used in a permanent fixed location. Shri Bajoria explains that the use of such batteries is mostly at the airports, telecommunication, defence, stations etc.. As regards the fact that in some of the cases accessories have also been supplied along with this stationary batteries as desired by the customers, is totally irrelevant factor. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and have come down. In order to meet the immediate cash flow requirement they have taken loans from the various financial institutions. As such he submits that any direction to deposit the amount would amount to undue financial hardship upon the applicant. 5. Countering the arguments Shri P.K. Dutta, ld. Advocate vehemently argued that the Tribunal after considering the prima facie case arrived at the finding that the applicants do not have any prima facie merits in their case. He contends that there is definitely a difference between a stationary battery and a stationary cell. He submits that battery always consists of two or more than two cells joined together. In common parlance also cell and battery are two different items. As suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teries of the type known commercially as stationary batteries. As such the classification list was got approved by the appellant by mis-declaring the items. He submits that wherever the appellants have cleared the cells along with the accessories which are the connectors and angles, the same have been considered as stationary batteries by the adjudicating authority inspite of the fact that requisite number of cells might not have been joined together in the applicants factory and the benefit of exemption has been granted in such type of cases. He submits that inspite of declaring the stationary batteries in their classification lists, the appellant have cleared the stationary cells under the garb of stationary batteries. This amounts to wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood prima facie case. As we are bound by the said observations of the Hon ble High Court, we do not think it fit to make any observations on the merits of the case at this stage. 9. The High Court has further directed that whether the petitioners should be exempted entirely from the payment of the pre-deposit or partly and in what manner the interest of the Revenue will be protected shall be decided by the Tribunal in accordance with law. 10. We observe that in terms of the provisions of Section 35F of the Central Excise Act, 1944, appellant is required to deposit the confirmed demand of duty and penalty. However, in terms of the proviso to the said section, jurisdiction has been given to the Appellate Tribunal to dispense with such dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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