TMI Blog2015 (3) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay duty on tubular poles. The show cause notice for demand of duty for the period from January 2012 to November 2012 has been issued on 05/2/13 and the duty demand is within the normal limitation period. We are of prima facie view that in view of the Apex court’s judgment in the case of Prachi Industries vs. CCE, Chandigarh (supra), the appellant shall be liable to pay duty in respect of the clearances of tubular poles during the period of dispute. - this is not the case for total waiver. - Partial stay granted. - Excise Stay Application No. 54235 of 2014 in Appeal No. 53783 of 2014 - Stay Order No. 50946/2015 - Dated:- 3-3-2015 - Shri Rakesh Kumar, Member (Technical) And Shri S.K. Mohanty, Member (Judicial) For the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44. However, subsequently, the Apex Court in the case of Prachi Industries vs. CCE, Chandigarh vide judgment dated 28/3/08 reported in 2008 (03) LCX 0013 took a contrary view and held that joining of duty paid pipes of different diameters by welding would amount to manufacture and in this judgment, the Apex court also considered its earlier judgment in the case of Hindustan Poles Corporation vs. CCE, Kolkata (supra). There is no dispute that the manufacturing process undertaken in the present case is same as that in the case of Prachi Industries (supra). However, the Department probably not being aware of the Apex Courts judgment dated 28/3/08 in case of Prachi Industries (supra) did not ask the appellant to pay duty in respect of the clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Hindustan Poles Corporation vs. CCE, Kolkata (supra), the registration certificate was granted only in respect of the accessories and not in respect of tubular poles, that for this reason only, they were making clearances of tubular poles without payment of duty and were not availing exemption under Notification No. 56/02-CE, that the appellant were not ware of the subsequent judgment of the Apex Court in the case of Prachi Industries vs. CCE, Chandigarh (supra), that the Department also did not point out to them that after the Apex Court s judgment in the case of Prachi Industries (supra), they would be liable to pay excise duty in respect of the clearances of tubular poles, that the appellant, from the very beginning, were filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law cannot be treated as an excuse for non-payment of duty, that in the judgment of Prachi Industries vs. CCE, Chandigarh (supra), the Apex court had distinguish its earlier judgment in the case of Hindustan Poles Corporation vs. CCE, Kolkata (supra), that the duty demand raised by the show cause notice dated 05/2/13 is within time, and that the appellant would not be eligible for the exemption under Notification No. 56/02-CE as the procedure prescribed for availing the same which involves filing of declaration etc. has not been followed. He, therefore, pleaded that the appellant had not been able to establish prima facie case in their favour, and hence, this is not the case for waiver from the requirement of pre-deposit. 5. We have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in terms of the Commissioners finding in para 25 of the impugned order, they would be liable for Cenvat credit of ₹ 80,83,283/- and the Commissioner in the impugned order while confirming the above duty demand of ₹ 1,11,74,291/- has permitted the Cenvat credit, their net duty liability would be about ₹ 31,00,000/-. The question as to whether the benefit of Notification No. 56/02-CE can be extended to them from the year 2009 requires in depth examination which cannot be done at this prima facie stage. We are, therefore, of the view that this is not the case for total waiver. We, therefore, direct the appellant to deposit ₹ 6,00,000/- (Rupees Six Lakhs) within a period of eight weeks from the date of this order. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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