(1.) After examining the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre -deposit, we proceed to deal with the appeal.
(2.) The appeal is against an order of the Commissioner (Appeals) upholding a demand of duty of Rs. 2,19,431/ - on "Cotton Waste" falling under Heading No. 52.02, against the assessee, for the period Sept/96 to Feb/97. The demand is consequential to denial of the benefit of Notification No. 74/2003 -C.E. (N.T.), dated 25 -9 -2003 to the assessee. This Notification was issued by Central Government under Section 11C of the Central Excise Act and the same reads as under : - "Whereas the Central Government is satisfied that according to a practice that was generally prevalent regarding levy of duty of excise (including non -levy thereof) under Section 3 of the Central Excise Act, 1944 (1 of 1944) (hereinafter referred to as the said Excise Act), on cotton waste falling under Heading No. 52.02 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), cleared by hundred per cent Export Oriented Undertakings and allowed to be sold in India, and that such cotton waste were liable to duty of excise which was not being levied according to the said' practice during the period commencing on and from the 23rd July, 1996 and ending with 28th February, 1997; Now, therefore, in exercise of the powers conferred by Section 11C of the said Excise Act, the Central Government hereby directs that the duty of excise payable on the said cotton waste, cleared by hundred per cent Export Oriented Undertakings and allowed to be sold in India, but for the said practice, shall not be required to be paid in respect of such cotton waste on which the said duty on excise was not being levied during the aforesaid period in accordance with the said practice."
(3.) Ld. Commissioner (Appeals), in para 10.2 of the impugned order, accepted that the subject goods, namely, Cotton Waste fell under Heading No. 52.02. However, he held that the benefit of the Notification was not available to the goods. Para 10.2 ibid reads as under : "However as regards yarn waste, as indicated in para 10.1, I find that though it falls under the Heading No. 52.02 it is not specifically covered by the said Notification No. 74/2003 C.E. (N.T.) dated 25 -9 -2003 issued under Section 11C of the Central Excise Act, 1944. Therefore demands made in respect of the yarn waste (hard waste) cleared by the appellants are sustainable as no exemption from levy of duties of Customs under Section 3 of the Central Excise Act, 1944 is available to it during the period in dispute."