P.K. Jain, J.
1 Heard Shri A.P. Mathur learned counsel for the petitioner and Shri Ganga Ram Gupta, learned Standing Counsel appearing for the respondents.
2. A demand of Rs. 3,40,000/- under the Central Excise Act has been raised for the purchases made by the petitioner for the period of August, 1992 to February, 1994 on the ground that old and unserviceable rails purchased by him as waste and scrap from the Railway Department for purposes of rerolling is not shown to be duty paid. The appeal filed against the order passed by the Adjudicating Authority was dismissed by the Commissioner Excise and ultimately the petition filed appeal before the Custom Excise and Gold (Control) appellate Tribunal in which u/s 35F of Central Excise Act, an application for stay-cum-waiver was moved which has been partly rejected by the Tribunal.
3. It is submitted by Shri Mathur that an inference about the goods being not duty paid, has been drawn on the ground that the petitioner has failed to adduce evidence in this regard. His submission is that since old and discarded and waste rails were purchased by the petitioner, such evidence could not be adduced by him. He has also referred to a decision of the Tribunal in "E/Stay/455/95-BI in A. No. F/792/95-BI" passed on 9-8-1995 wherein in similar circumstances the Tribunal had observed that "on such rerolling iron and steel material purchased from outside and lying in stock on or after 7-7-1992 Modvat credit is admissible.... The applicant appeared to have a strong prima facie case on merits and even if the old and unserviceable rails are treated as waste and scrap exempted under Notification No. 171/88-CE as held by the learned appellate court, they will not be treatable as non-duty paid in terms of judgement in the case of
4. Learned Standing Counsel has submitted that the appeal is still pending and has to be decided on merits.
5. Having heard learned counsel for the parties, I am of the view that the petition deserves to be allowed. There should be some sort of uniformity in the order passed by the Tribunal. When earlier in the similar circumstances relying upon various decisions the Tribunal has granted unconditional stay on the recovery of duties, such a relief could not be denied to the petitioner specially when admittedly the petitioner had purchased old and unserviceable rails from the Railway Department.
6. The petition is, therefore, allowed. Order of the Tribunal dated 12-1-2000 is quashed. Application for waiver-cum-stay moved by the petitioner before the Tribunal is allowed and the petitioner is granted unconditional stay on the recovery of duty demanded. The appeal shall be heard expeditiously.
