MODI ALKALIES AND CHEMICALS Vs. CCE JAIPUR

JUDGEMENT

(1.) THIS stay application arises our of appeal No.E/254/2001 -NB against the order of the Commissioner (Appeals) dated 13.11.2000 dismissing their appeal under Section 35 -F of the Central Excise Act, 1944 for non -compliance with the stay order dated 25.9.2000 directing them to make pre -deposit of es. 59,15,002.78 and penalty of Rs.1 lakh.

(2.) IN the present stay application the appellants have sought complete waiver of the duty and penalty amounts. The learned counsel has contended that the appellants have a very strong arguable case as the restriction regarding to the modvat credit vide Notification No.14/97 -CE dated 3.5.97 did not apply to residual fuel oil falling under Chapter Heading 27 of the CETA beig not specially mentioned therein. The Commissioner (Appeals) ought to have allowed the waiver of the pre -deposit of the duty and penalty amounts and heard the appeal of the appellants on merits. The counsel has also pleaded the financial hardship of appellants in making the pre -deposit of the entire duty and penalty amounts.

(3.) ON the other hand, the learned SDR has contended that the stay order though initially was passed without hearing the appellants, on their stay application but they were heard when they moved application for modification for the order and their contention that they had a strong arguable case, was not accepted. That order of the Commissioner (Appels) was not challenged before any higher forum and thus had attained the finality. The appellants were bound to comply with that order and having failed to do so, their appeal had been rightly dismissed under Section 35 -F of the Act. They do not have strong prima facie case. Regarding the financial hardship, the learned SDR has argued that no proof in that regard had been placed on record by the appellants.