Per S.L. Peeran : In this stay petition, the appellants are seeking waiver of pre-deposit of Rs. 20,21.383.77 and penalty of Rs. 1.5 lakhs and stay of its recovery during the pendency of this appeal. The brief facts of the case are that the appellant M/s. NTTF Electronic Training Centre issued a show-cause notice dt. 14.8.91. In this show-cause notice, it is alleged that the appellant is a manufacturer of subassembly falling under heading 84.70, 84.71 and 84.73 of Central Excise Tariff Act, 1985 for M/s. Bharath Electronics Ltd., Bangalore and they had contravened Rules 9(1), 52 A, 53 read with Rule 226, 173B, 173C, 173G of Central Excise Rules, 1944 and further committed the offences specified in Rules 173Q etc. in as much as, they had suppressed the facts of manufacture and clearance of the said goods to M/s. Bharath Electronics Ltd., Bangalore without following Central Excise procedures and without payment of Central Excise duty, in contravention of the said rules, with an intention to evade payment of Central Excise duty.

2. We have heard Shri N. Venkataraman, Id. Advocate for the appellant and Shri B.K. Singh, Id. SDR for the Revenue.

3. Ld. Advocate submitted that the Election Commission of India had placed order for manufacture of electronic voting machines with M/s. BEL., Bangalore. M/s. BEL has placed job work for manufacture of sub-assembly with the appellants and that they had supplied them raw-material under proper cover of gate pass and entries made in the registers. He is further submitted that the Govt, of India issued notification under Section 5 A of the Central Excises & Salt Act, 1944 exempting 75,000 electronic voting machines manufactured by M/s. BEL and supplied to the Election Commission of India from the whole of duty of excise leviable thereon which is specified in the Schedule to the Central Excise Tariff Act, 1985). Ld. Advocate pointed out that this being a specific notification under Section 5 A of the Act, the goods manufactured including its sub-assemblies would get exempted from payment of duty. In this context, he relied on the ruling of the Gujarat High Court rendered in the case of Vallabh Glass Works Vs. State of Gujarat as reported in 1993 (Vol. 88) Sales Tax Cases at page 74. The Hon'ble Court has laid down in this case that an article to be a 'machinery' must either be a complete machine or number of completed machines or parts or members of machine which, when they are assembled, form a complete machine. It has been held that 'Beaters' which are used by the assessee as parts of crushers they at least play the role of a part of member of a machine, as most essential part of the machine. Therefore, Beaters could be the machinery and a restricted meaning to the word "machinery" cannot be constituted while interpreting the exemption notification. Ld. Counsel also submitted that the demands were barred by time as the department was fully aware of the goods being manufactured by M/s. BEL as well as sub-assembly having been manufactured by the appellants. He also pleaded that the appellants were having constant losses. The job charges were only Rs. 6 lakhs while the duty confirmed was more than Rs. 20 lakhs and in the circumstance, if they were directed to deposit the amount, they would be put to great hardship. He also submitted that the balance of convenience is in favour of the appellants and therefore, the pre-deposit should be waived and say granted till the pendency of the appeal. Ld. SDR pointed out that the notification did not refer to sub-assemblies and sub-assemblies were specifically mentioned in the tariff, the duty was to be discharged by the appellants. Therefore, he submitted the order passed by the lower authorities was correct in law. The Ld. Counsel offered to deposit Rs. 2 lakhs in this case.

4. We have carefully considered the pleas made by both the sides and we are fully satisfied that there is no suppression in the matter calling for extension of the larger period. The