2010 (5) TMI 422 - AT - Central Excise

Rectification of mistake - financial hardship was not considered while disposing the matter matter required re-consideration of the matter Waiver of pre-deposit - under-invoicing is based on data retrieved from the lap top and statements of witnesses coupled with some documentary evidences in relation to small percentage of clearances - evidence being not allowed to be tested by way of cross-examination - appellants have been able to make out prima facie case for grant of stay order and total waiver of the amount demanded till the disposal of the appeal

Issues Involved:
1. Non-consideration of grounds during the disposal of the stay application.
2. Financial hardship faced by the appellants.
3. Allegations of under-invoicing.
4. Denial of cross-examination of witnesses.
5. Collection and utilization of unaccounted cash.
6. Statements of dealers supporting the appellants.
7. Relevance of similar product pricing by competitors.

Issue-wise Detailed Analysis:

1. Non-consideration of grounds during the disposal of the stay application:
The appellants argued that the Tribunal's order dated 13th July 2009, which disposed of their stay application, did not consider several crucial grounds. These grounds included the pricing of similar products by competitors, the financial hardship of the appellants, and the lack of material evidence for certain allegations. The Tribunal acknowledged that the order did not refer to all the grounds enumerated by the appellants, but it did consider points such as receipt of unaccounted cash and retrieval of data from the laptop.

2. Financial hardship faced by the appellants:
The appellants contended that their financial position was grave and that there were no reserves to comply with the deposit requirement. The Tribunal noted that the financial hardship issue was not elaborately dealt with in the previous order. The appellants provided a detailed financial summary showing significant losses and liabilities, which was not seriously disputed by the department. The Tribunal concluded that the appellants had demonstrated financial hardship, justifying a waiver of the pre-deposit requirement.

3. Allegations of under-invoicing:
The appellants argued that the prices of their products were similar to those of their competitors during the relevant period, and there was no justification for the under-invoicing allegation. The Tribunal found that there was no material evidence to show any difference in pricing between the appellants' products and those of their competitors. The department had not investigated this aspect, and the allegation of under-invoicing was based on circumstantial evidence.

4. Denial of cross-examination of witnesses:
The appellants contended that they were not given the opportunity to cross-examine witnesses, particularly the government examiner of data, which was crucial for their defense. The Tribunal noted that the denial of cross-examination of relevant witnesses could have caused great prejudice to the appellants, especially since the evidence was based on circumstantial data retrieved from a laptop.

5. Collection and utilization of unaccounted cash:
The appellants argued that there was no material evidence to support the allegation of collecting unaccounted cash and using it for purchasing raw materials. The Tribunal observed that the conclusion regarding the collection of cash was based on circumstantial evidence, and there was no direct evidence to substantiate the allegation.

6. Statements of dealers supporting the appellants:
The appellants highlighted that the statements of 18 dealers supported their case but were ignored by the adjudicating authority. The Tribunal agreed that these statements should have been considered to ascertain the truthfulness of the department's allegations. Ignoring these statements without satisfactory reasons was relevant for deciding the prima facie case for the stay application.

7. Relevance of similar product pricing by competitors:
The appellants emphasized that the pricing of their products was similar to those of their competitors, which was crucial for determining the under-invoicing allegation. The Tribunal found that the department had not collected evidence regarding the price structure of similar products manufactured by other manufacturers. This aspect was relevant for establishing the allegation of under-invoicing.

Conclusion:
The Tribunal allowed the applications for reconsideration, recalled the order dated 13th July 2009, and granted a stay on the impugned order while waiving the requirement of pre-deposit until the disposal of the appeals. The Tribunal also granted liberty to the department to move for early hearing if the appeals were not taken up for final hearing by April 2011.

← Previous Next →