2005 (12) TMI 323 - AT - Central Excise

Summary

Issues:
1. Waiver of pre-deposit of duty and penalty amounts imposed by the Commissioner.
2. Inconsistency between show cause notice and observations in the impugned order.
3. Assessment of wastage claimed by the assessee.
4. Allegations of clandestine clearance of goods.
5. Denial of permission to cross-examine concerned persons.
6. Financial hardship and availability of assets for payment.

Analysis:

Issue 1:
The applicants sought waiver of pre-deposit based on financial hardship. The Tribunal noted previous remands and modifications in pre-deposit amounts. However, the Tribunal found the earlier financial hardship claim no longer valid as the seized plant & machinery were released, and the company had assets worth Rs. 1.6 crores. Thus, the Tribunal rejected the waiver request.

Issue 2:
The inconsistency between the show cause notice and the impugned order was raised. The Tribunal clarified that the conflict was non-existent as it focused on the clearance of 13,18,407 bottles, not the 17,59,693 bottles mentioned in the notice. The Tribunal detailed the specific quantities involved and the Tribunal's previous rejection of a related application.

Issue 3:
The Tribunal assessed the wastage claimed by the assessee, determining that the actual wastage was lower than claimed. It also addressed the clearance of bottles in the domestic area, finding discrepancies in the quantities cleared clandestinely and rejecting the assertion of working under specific notifications.

Issue 4:
Regarding the denial of permission to cross-examine, the Tribunal mentioned that the Commissioner had adequately considered this aspect in the impugned order and found no necessity to allow cross-examination based on prima facie reasons.

Issue 5:
The Tribunal further discussed the financial status of the company, noting assets worth over Rs. 1.6 crores. Despite claims of non-functioning, the Tribunal expressed concerns about potential erosion or misuse of assets. The Tribunal declined to address the issue of asset realization by Revenue authorities at that stage.

Conclusion:
The Tribunal rejected the waiver request for pre-deposit, considering the changed circumstances and available assets. The applicants were granted time to deposit the duty and penalty amounts, with a deadline set for compliance, failing which the appeals would be dismissed.