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TMI Blog2012 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Stay Application Nos. 124 & 468 of 2012 in Excise Appeal Nos. 116 & 425 of 2012, by which the Tribunal has directed the appellant to deposit the balance of the duty, over and above 50% of the duty, which was deposited in terms of the orders of Commissioner (Appeals) for compliance of provisions of Section 35-F of the Act within four weeks from the date of order. On the deposit of the amount, the pre-deposit of interest will stand waived of, and the recovery has been directed to be stayed till the disposal of the appeals. 3. In the present case, the period of dispute is from April, 1993 to February, 1994, for payment of differential excise duty on 'decorative laminated sheets'. The appellant was paying the excise duty treating the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since the assessments were made provisionally, no show cause notice could be issued. The CESAT should have considered the prima facie case. At the time when the show cause notices were issued, the Tribunal's decision that the goods fall in classification of sub heading 4823.90 was operative. The department had filed an appeal against the order. The provisional assessments were not made requiring the appellant to submit the bank guarantees. The decision on the issue of classification finally in the year 1997 would not extend the limitation for issuing show cause notices for demand the differential excise duty. He submits that the demand raised in the year 1993-94, when the Tribunal had decided that the goods were classified under sub he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court explained the expressions namely "undue hardships to such person" and "safeguards the interest of revenue" in Section 35F, as a ground to claim interim relief as follows:- "27. In this context, reference can usefully be made to the judgment of this Court in Benara Values Ltd. v. Commissioner of Central Excise (2006) 13 SCC 347. In that case, a two Judge Bench interpreted Section 35-F of the Central Excise Act, 1944, which is pari materia to Section 19(1) of the Act, referred to the judgments in Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436, Samarias Trading Co. (P) Ltd. v. S. Samuel (1984) 4 SCC 666, Commissioner of Central Excise v. Dunlop India Ltd. (1985) 1 SCC 260 and observed: "Two significant expressions u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue." 9. Shri S.P. Kesarwani submits that the judgment of Supreme Court classifying the goods under sub heading 3920.31 in Bakelite Hylam Ltd (supra) has finally resolved the dispute with regard to payment of excise duty under sub heading 3920.31, and thus the appellant was required to pay the differential duty. The appellant's case has no legs to stand. The show cause notices were issued on 15.9.93 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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