9911796707
TMI Blog2011 (3) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) whereby the appeal filed by the appellants was dismissed for non-compliance of the requirement of Section 35F of the Central Excise Act, 1944 inasmuch as that the appellants who were directed under Order dated 23.9.09 to deposit 50% of the duty demanded within 4 weeks to enable the appellants to contest the proceedings before the Commissioner(Appeals) had failed not only to deposit the said amount within the prescribed period but even within the extended period, which extension was granted under Order dated 29.10.09 while disposing of their application for modification of the Stay Order dated 23.9.09. 2. While challenging the impugned order, the learned advocate for the appellants submitted that the order dated 23.9.09 did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of freight elevators other than passenger elevators, whereas the unit in question was a passenger elevator. 4. The advocate for the appellants also drew our attention to the findings by the original authority to the effect that the letter dated 13.3.06 by the Asstt. Commissioner, Belapur III Division clearly observed that the lift in question was used and required in relation to the production of export goods. 5. The challenge before this court is against the order which has been passed essentially under section 35F of the said act, that is for non-compliance of the requirement by the appellants to enable them to contest the proceedings before the learned appellate authority. Indeed, apart from contending that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent that the authority has taken into consideration the relevant facts which have been considered by the adjudicating authority for deciding the matter and thereafter considering that there was no prima facie case on merits made out by the appellants as also no case of undue financial difficulties pleaded in the application filed by the applicant, the appellant was directed to deposit 50% of the duty demanded. In fact, the original authority under his order dated 26.11.08 had confirmed the demand of duty to the tune of Rs.3,00,551/- with interest there on. A penalty of Rs. 10,000/- was also imposed. The appellate authority had not only waived the interest and penalty but had only directed 50% of the duty to be deposited. By no stretch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with the aspect regarding review powers in relation to its own orders. 10. As regards the contention that the appellants have prima facie case, we find that the main issue in the matter related to the claim of the appellants that the import of lift in question was covered by the Notification No.53/97-Cus. Perusal of the Notification, however, does not disclose so. In fact, the table to the Notification enlists the goods which are entitled for the benefit of the Notification and under sl.no.4 thereof it is specifically stated Material handling equipments, namely, forklifts, overhead cranes, mobile cranes, crawler cranes, hoists and stackers . In other words, as far as the material handling equipments are concerned, there is spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be said that the item is included under the Notification and the benefit of which can be claimed by the appellants. Secondly, the so-called Certificate dated 3.1.05 on this material aspect cannot have any evidentiary value. Undisputedly, the Board of Approval in its meeting held on 5.9.05 had specifically directed the Development Commissioner SEEPZ SEZ to certify after verification whether the lift in question was a freight elevator or not. In spite of the specific direction for inspection, verification and certification by the Development Commissioner, neither the inspection was held by such authority nor the certificate was issued by that authority. The inspection was held by unknown representative of the Development Commissioner and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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