2008 (5) TMI 583 - AT - Central Excise

Stay/Dispensation of pre-deposit - Modification of stay order - Recovery of dues - Limited company - Held that - The appellant is a limited company and therefore liability of the Directors and the shareholders is limited to their shareholding and as rightly pointed out by the ld. Advocate, other than properties in the name of the company, it would not be possible for any one to recover additional dues since the liability of the company will be limited to the assets available. The assets available have virtually been disposed of in the sense that one property has been disposed by IFCI Ltd. and the second property remains attached by the Central Excise Department - the requirement of pre-deposit of duty and penalties waived.

Summary

Issues: Modification of pre-deposit order based on change in circumstances.

Analysis:
The appellants filed a modification application seeking a change in the order rejecting a previous modification application. The original order from 17-12-2007 required the deposit of 25% of confirmed Customs and excise duty, along with substantial penalties. The Tribunal found that the appellants failed to rebut the evidence of evasion convincingly and did not provide sufficient evidence of financial hardship, except for a claim of suspended manufacturing activity since 2-8-2004.

In the subsequent modification application, the appellants argued that their property in Ankleshwar had been taken over by IFCI Ltd. and was set for auction. They also mentioned that other properties in Silvassa had been attached by the Central Excise Department. The appellants claimed that apart from these properties, the company had no other assets, and the refusal to grant a stay on recovery pending the hearing would lead to the forfeiture of their right to appeal and justice from the Tribunal.

The Tribunal acknowledged the unique circumstances presented by the appellants, being a limited company with liability limited to their shareholding and company assets. Considering that the company's properties had been disposed of or attached, the Tribunal decided to waive the pre-deposit requirement for duty and penalties imposed on M/s. Sun Polytron Industries Ltd. The Tribunal deemed that sufficient security in the form of the factory was already in possession of the Revenue, allowing the modification application. The appeal was scheduled on an out-of-turn basis on 17-6-2008 due to the significant revenue involved.

In conclusion, the Tribunal granted the modification application, waiving the pre-deposit requirement based on the changed circumstances of the company's properties being disposed of or attached, ensuring a fair opportunity for appeal without jeopardizing the right to seek justice.