TMI Blog2011 (3) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... essentially to the effect that the lift is not covered by Notification in question - It was the case of the appellants themselves that though it is a passenger lift, it was being used as material handling equipment and therefore it is covered by the said Notification - The burden, therefore, in this case was specifically cast upon the appellants - There was no question of casting the burden upon the department to prove the negative. Held that: The Commissioner (Appeals) was justified for ordering pre-deposit of 50% of the duty and thereafter for dismissal of the appeal for non-compliance of the stay order - Hence in the absence of any infirmity in the impugned order, the appeal fails and is dismissed. - E/347/10 - A/229/2011-WZB/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants have a very good case as the dispute related to the elevator was as to whether the same was covered by Notification No.53/97-Cus dated 3.6.97 as amended from time to time, and the certificate issued by the Development Commissioner on 3.1.05 in terms of directions by the Board of Approval in its meeting held on 5.9.05 clearly disclosed that the elevator was used as freight elevator in the premises of the appellants. 3. The D.R. on the other hand submitted that the materials placed before the authorities did not satisfy that the lift in question was a freight elevator as claimed by the appellants. On the contrary, the certificate issued by the Development Commissioner as per the directions of the Board of Approval disclosed that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie case on merits itself was a ground for challenging the order passed by the Commissioner (Appeals) to be bad in law. 6. The order dated 23.9.09 was in terms of Sec.35 F of the Act. Section 35 F of the Act clearly specifies that where any appeal which is filed by the appellant challenging the order of the adjudicating authority, the appellant shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. Proviso to the said section provides discretion to the appellate authority or the Appellate Tribunal to pass appropriate order dispensing with such deposit in its entirety or part thereof, as the appellate authority may deem fit, and to impose conditions so as to safeguard the interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet the Commissioner (Appeals) had granted waiver of 50% of the duty and total waiver of penalty and interest. 8. It is pertinent to note that the appellants moved an application for modification of the stay order and the same was disposed of on 29.10.09 while observing that the Bombay High Court in Baron International Ltd. vs. UOI 2004 (163) ELT 150 (Bom) had held that for seeking modification a prima facie case in that behalf is required to be made out in the pleadings. No application for review in the garb of prayer for modification can be entertained by the Tribunal . It was held by the Commissioner(Appeals) that in the absence of any change in the circumstances, their application was rejected. However, while rejecting the said app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts did not mention passenger elevator but only mentioned elevator. Obviously, elevator which was meant for material handling equipment. In the case in hand, it is an undisputed fact, duly corroborated by letter dated 3.1.05 by the Asstt. Development Commissioner addressed to the appellants, that the so-called elevator in question is nothing but a passenger lift. Further, the finding by the original authority is to the effect that the letter dated 1.6.01 by the Joint Commissioner examining the material, which are allowed at sl.no. 16 for import were freight elevators other than passenger elevators. In other words, the duty-free import permitted did not include passenger lift and at the same time it is an undisputed fact that the unit in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such representative or to the Asstt. Development Commissioner to issue the certificate. Besides, the letter itself discloses that the unit in question is basically a passenger lift and only at the time of installation it was found to have been used as freight elevator. Admittedly, there is no evidence placed on record by the appellants to show that all throughout, the said unit was being used as freight elevator or as material handling equipment. Being so, neither the import of the passenger lift is covered by the Notification in question nor the passenger lift was established to be a freight elevator. On the contrary, the material on record was totally against such claim by the appellants. Being so, we fail to understand as to on what ..... X X X X Extracts X X X X X X X X Extracts X X X X
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