2010 (4) TMI 818 - HC - Central Excise

Pre-deposit towards duty and penalty - Tribunal observed that one cannot expect the Department to recover and produce authentic records of the assessee s illegal activities. The responsible functionary of the petitioner-company has stated in his statement that the records of the earlier period have been destroyed. Taking into account the financial hardship pleaded by the petitioner and the amount of Rs. 52.00 lakhs paid by the petitioner, the petitioner was directed to deposit a sum of Rs. 2.00 crores - Held that - order is set aside and the Writ Petition is allowed. The Tribunal is directed to take up the appeal filed by the petitioner and the appeal filed by the Department together for hearing within a period of eight weeks from the date of receipt of a copy of the order.

Issues:
1. Validity of the order of the CESTAT directing the petitioner to deposit a sum of Rs. 2.00 crores.
2. Consideration of financial hardship and previous payments made by the petitioner in the decision-making process.
3. Failure of the Tribunal to consider the appeal filed by the Department while directing the petitioner to deposit the sum.
4. Granting relief to the petitioner based on the prima facie case and setting aside the impugned order.

Analysis:

1. The petitioner challenged the order of the CESTAT directing them to deposit Rs. 2.00 crores within a specified period. The Tribunal based its decision on the illegal manufacturing and evasion of duty corroborated by recovered records, including illegal purchase of MS ingots. The petitioner had already paid Rs. 52 lakhs before adjudication. The Tribunal considered the lack of authentic records of illegal activities and financial hardship, leading to the directive for the deposit.

2. The Tribunal's decision to direct the petitioner to deposit the sum was challenged on the grounds that the Department had also filed an appeal before the CESTAT against the same order of the Commissioner. The petitioner argued that the Tribunal overlooked the Department's appeal and should have considered it before ordering the deposit. The petitioner sought exemption from pre-deposit based on these grounds.

3. The High Court, after reviewing the Tribunal's order and relevant documents, noted that the Department had indeed filed an appeal against the same order of the Commissioner. Considering the overlap in issues raised in both appeals, the Court found merit in the petitioner's argument and granted the relief sought. The Court set aside the impugned order and directed the Tribunal to hear both appeals together within eight weeks.

4. The Court's decision was based on the acknowledgment of the Department's appeal and the similarity in issues raised in both appeals. By granting the relief to the petitioner and setting aside the Tribunal's order, the Court ensured a fair consideration of all relevant factors and directed a consolidated hearing of both appeals within a specified timeframe. The Court's ruling aimed to uphold the principles of natural justice and procedural fairness in the adjudicatory process.

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