2008 (3) TMI 569 - AT - Central Excise

Issues Involved:
1. Legality of the search and seizure process.
2. Compliance with the conditions of the exemption notifications.
3. Validity of statements recorded during the investigation.
4. Technical and procedural defenses raised by the appellant.
5. Financial hardship claimed by the appellant.

Issue-wise Detailed Analysis:

1. Legality of the Search and Seizure Process:
The appellant challenged the legality of the search conducted on 19-12-2006, arguing that no Panchnama was prepared in the presence of independent witnesses, and the seizure of 18,061 pairs of footwear was uncalled for. The appellant contended that the investigation team did not examine each pair of footwear to ascertain whether they were marked with a price in indelible ink or embossed. The tribunal found that the seizure list bore the signatures of two independent witnesses and that the appellant's representative had subscribed without objection to the adverse remark that the footwear lacked price marks. Thus, the tribunal dismissed the appellant's claim of an illegal search and seizure.

2. Compliance with the Conditions of the Exemption Notifications:
The appellant was accused of violating the essential conditions of Notification No. 6/02 as amended by Notification No. 23/04 and Notification No. 5/06 by clearing footwear without marking the retail sale price indelibly or embossing it on the footwear. The tribunal noted that the appellant admitted to clearing footwear without price marks before the search and only began marking prices after the search. The tribunal also found that the appellant could not provide evidence to show compliance with the notification conditions for the seized footwear.

3. Validity of Statements Recorded During the Investigation:
The appellant argued that the statements of Mr. Imdad Uddin and Mr. Quaiser Alvi, recorded during the search, were obtained under compulsion and retracted later. The tribunal observed that the statements were corroborated by physical verification and other evidence on record, and the retraction statements were not substantiated with sufficient proof. The tribunal held that the initial statements lent credence to the adjudication proceedings.

4. Technical and Procedural Defenses Raised by the Appellant:
The appellant raised several defenses, including technical difficulties in marking prices on footwear, partial compliance with notification conditions, and the process of manufacture involving job-workers. The tribunal found these defenses unconvincing, noting that the appellant failed to explain the nature of the technical problems or identify job-workers involved. The tribunal also dismissed the appellant's claim that the seized footwear was in different stages of manufacture awaiting pricing, as there was no evidence to support this.

5. Financial Hardship Claimed by the Appellant:
The appellant claimed financial hardship and requested a stay on the realization of the demand during the pendency of the appeal. The tribunal, citing the Apex Court's rulings in Benera Valves Ltd. v. Commr. of Central Excise and Indu Nissan Oxo Chemical Industries Ltd. v. U.O.I., held that the appellant did not provide evidence of financial difficulties. Thus, the tribunal directed the appellant to pre-deposit Rs. 50,00,000/- within eight weeks and report compliance, failing which the recovery of the balance demand would proceed.

Conclusion:
The tribunal dismissed the appellant's stay application, directing a pre-deposit and emphasizing the need for evidence to support claims of financial hardship and compliance with notification conditions. The tribunal's decision was based on the evidence presented, including the statements recorded during the investigation and the physical verification of the seized goods.

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