P.G. Chacko, Judicial Member - This application filed by the appellant seeks waiver and stay in respect of the adjudged dues. On a perusal of 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 take up the appeal.

2. In a show-cause notice dated 23-8-2010 issued to the appellant, the Department had alleged that they were manufacturing and clearing both dutiable goods and exempted goods and were also providing taxable output services during the material period, that certain input services received by them were used both in the manufacture of exempted goods and for providing the output services, that the credit of service tax paid on such input services were utilized for payment of service tax on the output services, that separate accounts were not maintained for receipt, consumption and utilization of input services in the manufacture of exempted goods and for providing output services, that the appellant thereby contravened the provisions of Rule 6(3) of the CENVAT Credit Rules (CCR), 2004 and that consequently they were liable to pay an amount equivalent to 10% of the value of the exempted goods. The show-cause notice accordingly demanded Rs. 5,03,38,740/- from the appellant for the period from 2006-07 to 2009-10 under Rule 14 of the CCR read with the proviso to Section 73(1) of the Finance Act, 1994 and also demanded interest thereon under Rule 14 read with Section 75 and also proposed penalties under Sections 77 and 78 of the Act. The extended period of limitation prescribed under the proviso to Section 73(1) of the Act was invoked on the alleged ground that the appellant had suppressed the factum of having erroneously availed and utilized CENVAT credit, with intention to evade payment of service tax. In their reply to the show-cause notice, the party, inter alia, referred to sub-rule 7 of Rule 6 of the CCR and claimed the benefit of this sub-rule which had been introduced by the Finance Act, 2010 with retrospective effect from 10-9-2004. They submitted that they had already computed the proportionate amount of service tax credit attributable to the exempted final products and had paid the same with interest @ 24% and, therefore, the proposals in the show-cause notice were liable to be dropped. A statement of computation was also produced with a copy of the challan as evidence of payment. Reliance was also placed on the Hon'ble High Court's judgment in the case of CCE v. ETA Technology (P.) Ltd. [CEA No. 70 of 2007, dated 29-6-2010]. The impugned order was passed by the Commissioner of Service Tax in adjudication of this dispute.

3. When this matter came up before us on the last occasion, submissions were made from both sides with reference to paragraphs 48 to 51 of the Commissioner's order, reproduced below :

"48. The Finance Act, 2010 has made amendments of Rule 6 of Cenvat Credit Rules, 2004 and the same is amended retrospectively. As per the said amendment the person who opts to pay the amount in accordance with the provisions as amended shall pay the amount along with interest specified and make application to the Commissioner of Central Excise along with documentary evidence and a certificate from a chartered accountant or a cost accountant, certifying the amount of inputs/input service credit attributable to the inputs/input service used in or in relation to the manufacture of exempted goods, within a period of six months from the date on which the Finance Bill, 2010 receives the assent of the President.

49. This is the conditional provision/rule, the enforcement of this is made dependent upon the fulfilment of a condition, and what is delegated to the competent authority is the authority to determine by exercising judgment, whether or not the condition has been fulfilled. Thus, in conditional provision/rule, the provision/rule is there but its taking effect is made to depend upon determinat