ORDER Rajes Kumar, J.
1. This writ petition is directed against the order of Tribunal dated 16-9-1999 by which the Tribunal has rejected the application under Section 35F of Central Excise Act, hereinafter referred to as Act.
2. The petitioner is engaged in the business of manufacture and sales of Iron Bars. During the relevant period, the petitioner had cleared 559.535 M.T. of Iron bars. The petitioner claimed exemption under the Notification No. 202/88-C.E., dated 2-5-1988 as amended time to time on the ground that in puts used in the manufacture was deemed to have been duty paid in view of the explanation to the notification. The Addl. Commissioner, Central Excise, Kanpur vide order dated 4-3-1998 confirmed the demand of excise duty of Rs. 5,46,626/- on the clearance of Iron bars. The Addl. Commissioner had observed that the party had never declared the source of purchase to the Department nor produced any duty paying documents to establish their case. He, further, observed that the party had contended that they used M.S. ingots and unserviceable and worn out the railway parts namely rails Sleepers, Axels. Wheels, Springs, Fish Plates etc. as raw materials and if the party had used any other materials also and it was open for them to produce G.Ps./bills of other duty paid inputs and their source and payment particulars etc. but party has not produced any records to show that they have used any other duly paid materials along with railway material in the manufacture of final product. Railway materials have been treated as non-duty paid material being waste and scrap and accordingly disallowed the claim of exemption. Appeal filed by the petitioner was rejected by the Commissioner, Central Excise (Appeals), Allahabad. Petitioner filed Second Appeal before the Tribunal, New Delhi which is pending. Along with the appeal, petitioner filed an application under Section 35F for waiver of the condition of pre-deposit of duty and penalty demanded. Tribunal vide order dated 14-6-1999 rejected the application. Tribunal has observed that the petitioner has not made out a strong prima facie case in view of detailed finding that the inputs used in the manufacture of the Iron Bars having been purchased from railway Stockyard are clearly recognizable as non-duty paid material.
3. I have heard Shri A.P. Mathur, learned Counsel for the petitioner and Shri S.P. Kesharwani, learned Standing Counsel.
4. The contention of learned Counsel for the petitioner is that petitioner has used rerollable material from Railways and they are not recognizable as non-duty paid material. He submitted that in similar circumstances, this Court in the case of Laxmi Rolling Mills and Ors. v. CEGAT, New Delhi and Ors. reported in [2002 (142) E.L.T. 327 (All.) = 2002 (48) RLT 1 (Alld.)] held that the burden of onus was on the department to prove that the goods have not suffered duty or that the same are recognizable being non-duty paid. Mere auctioning by the railway the discarded rails etc would not automatically led to the inference that the same were clearly recognizable as non-duty paid. He submitted that against the judgment of this Court, a Special Leave to Appeal (Civil) No. 19555-19557/2002 [2003 (157) E.L.T. A137 (S.C.) was filed by the Revenue, has been dismissed by Hon'ble Supreme Court. He, further, submitted that in several other cases. Tribunal has waived the condition of pre-deposits. Copy of few judgments are annexed along with the writ petitions and reference of one of the cases is E/149/95-B, dated 9-8-1995 Ravi Steel v. Collector of Central Excise, Allahabad. He, further, submitted that in similar circumstances in Writ Petition No. 233/2000 [2000 (119) E.L.T. 534 (All.)] Vishal Industries v. Customs Excise & Gold (Control), Appellate Tribunal, New Delhi, this Court vide order dated 9-3-2000 allowed the application under Section 35F.
5. Looking to the entire facts and circumstances, I am of the view that it would be appropriate that the appeal of the petitioner may be heard expeditiously without asking for any pre-deposits. Issue involve in appeal is arguable and requires adjudication when in other cases condition of pre-deposit has been waived, in the present case also it should be waived to maintain the uniformity.
6. In the result, the writ petition is allowed. The order dated 14-6-1999 is set aside and the Tribunal is directed to decide the appeal expeditiously preferably within a period of three months without asking any pre-deposits from the petitioner.