ORDER

Per Shri V.P. Gulati: This is an application for waiver of pre-deposit of duty of Rs. 41,35,842/- and penalty of Rs. 4,00,000/- levied on the petitioner under the impugned order of the Collector of Central Excise, Madras in addition to a demand of duty of Rs. 23,817/-. The learned Advocate has pleaded that so far as the amount of duty of Rs. 23,817/- is concerned he is not contesting and his only plea is for waiver of pre-deposit in respect of the other amounts.

2. The learned Advocate Shri Raghavan has submitted that the issue is with reference to the petitioners eligibility and entitlement to the benefit of Notification 175/86 dated L3.1986 which has been denied to the appellants on the ground that the petitioner has used the brand name of a foreign manufacturer who admittedly does not have any manufacturing activity or interest in India. The learned Counsel in this connection referred us to the ruling of this Bench in the case of M/s Fosroc Chemicals India Ltd. Vs. Collector of Central Excise reported in 1993 (65) ELT 119 (T) and the earlier decision of the Tribunal in the case of Ceramed Engineers (P) Ltd. Vs. Collector of Central Excise, Bangalore in E/Stay/ 495/92 - E/371/92. He has pleaded inasmuch as prima-facie on merits stay has been granted earlier, the appellants should also be favoured with the stay leaving the issue to be decided at the time of final hearing.

3. The learned JDR of the Department has pleaded that no doubt this Bench of. the Tribunal has taken a prima-facie view that the use of the brand name of a foreigner will not dis-entitle the appellants to the benefit of Notification 175/86 in terms of para 7 of the said notification, the North Regional Bench of the Tribunal in the case of Festo Controls (P) Ltd. Vs. Collector of Central Excise reported in 1994 (72) ELT 919 (T) has held otherwise and supported the order of the learned lower authority.

4. On going through the findings we find that the ruling of this Bench referred to above prima-face will be applicable to the facts of this case. The observations of this Bench in the above case are reproduced below:

"We note that the Tribunal had an occasion to deal with a similar case recently in E/Stay/495/92 - E/371/92 relating to Ceramed Engineers (P) Ltd. Vs. Collector of Central Excise, Bangalore, where the Tribunal on prima-facie view granted waiver of pre-deposit making the following observations:

"We find considerable force in the submissions of the Id. counsel on the scope and applicability of the Central Excise and Salt Act, 1944, the wording of notification 175/86 and the concept of brand name brought within its mischief for the benefit of SSI etc. to the brand name of one outside India and when such brand name does not exist in India, and in this view we grant waiver of pre-deposit of duty pending appeal.....

..... The admitted position is that a brand name in question has not been in use in India by anybody other than by the appellant. A reading of the notification, prima-facie would show that the provisions regarding the use of brand name and disentitlement of the benefit of Notification 175/86 by virtue of the use of the brand name, is only to take care of the cases where a person owning the brand name in manufacturing the goods in India is not entitled to the benefit of Notification No. 175/86 and in case somebody else uses the brand name he also would be disentitled to the benefit of the notification. Therefore, unless the brand name owner himself is in India and is himself not entitled to the benefit of notification, then alone the notification in question would come into force. In this view of the matter the appellant's prayer for waiver of pre-deposit has to be allowed and ordered accordingly."

Following the ratio of the above decision and on prima-facie ground in the facts and circumstances of this case we grant waiver of pre-deposit of the duty and the penalty pending appeal and also grant stay of recovery of the amount in question in pendi