2012 (11) TMI 598 - AT - Central Excise

Waiver of pre-deposit - fulfilment of condition for availing exemption - use of fly ash of the percentage prescribed under Notification No. 6/2002-C.E. - alleged that more than 10,000 MTs of fly ash was not supplied by the said Santhosh Kumar, has not adduced any evidence to show that assessee has procured and used any other substitute raw material to produce the quantity of asbestos cement sheets accounted as manufactured and cleared by the assessee - Held that - Condition relates to use of minimum of 25% by weight fly ash/phosphor-gypsum - person duly authorized by the assessee having failed to produce the necessary evidence - assessee has chosen to record the disputed quantity also as having been procured only from MTPS though the alleged supplier Shri Santhosh Kumar has failed to produce any reliable evidence in this regard - assessee (the first applicant) has not, prima facie, established the use of minimum percentage of fly ash prescribed under Notification No. 6/2002 and thus has not made out a prima facie case for waiver - second applicant, without any evidence for procurement from third parties has prepared documents showing additional supply of fly ash and therefore abetted 1st applicant in wrongly availing the exemption both the appellants directed to make pre-deposit

Issues Involved:
1. Eligibility for exemption under Notification No. 6/2002-C.E., dated 1-3-2002.
2. Prima facie establishment of use of fly ash in the prescribed percentage.
3. Allegation of abetment in misuse of the exemption.
4. Requirement of pre-deposit for stay of recovery.

Detailed Analysis:

1. Eligibility for Exemption under Notification No. 6/2002-C.E., dated 1-3-2002:
The primary issue revolves around whether the first applicant is entitled to the benefit of exemption under Notification No. 6/2002-C.E., which requires that the final product, asbestos cement sheets, must contain not less than 25% fly ash by weight. The Department's case is based on the allegation that the first applicant accounted for bogus/excess fly ash receipts to wrongfully avail the exemption.

2. Prima Facie Establishment of Use of Fly Ash:
The first applicant claimed to have procured fly ash from various sources, including the second applicant and other third-party vendors. The Department's investigation revealed discrepancies in the quantity of fly ash received, particularly from the second applicant. The evidence included a letter from the Superintending Engineer and the fly ash policy prohibiting sub-letting of fly ash. The Department argued that the first applicant did not receive the alleged quantities of fly ash and manipulated records to show compliance with the exemption conditions.

The first applicant countered by asserting that they maintained proper accounts and made payments for the fly ash by cheque and cash. They also argued that the Department did not allege any clandestine removal of finished goods or unaccounted purchases. The Vice-President, in her order, concluded that the first applicant prima facie established the use of fly ash as required under the Notification and was entitled to the exemption.

However, the Technical Member disagreed, emphasizing that the burden of proof lies on the assessee to strictly prove compliance with the exemption conditions. He noted that the Department's investigation revealed manipulations and the lack of evidence for the procurement of fly ash from the second applicant. The Technical Member directed the first applicant to pre-deposit Rs. 4.5 crores towards duty, finding that they had not made out a prima facie case for a blanket waiver.

3. Allegation of Abetment in Misuse of the Exemption:
The second applicant was penalized for allegedly abetting the first applicant in the misuse of the exemption by supplying bogus/excess fly ash. The Vice-President found that the second applicant prima facie did not abet the first applicant and was entitled to a waiver of the pre-deposit of the penalty. Conversely, the Technical Member, considering the evidence of manipulation and the failure to substantiate the procurement of fly ash, held that the second applicant abetted the first applicant and required a pre-deposit of Rs. 4 lakhs towards the penalty.

4. Requirement of Pre-Deposit for Stay of Recovery:
The Vice-President and the Technical Member differed on the requirement of pre-deposit. The Vice-President granted a total waiver of pre-deposit, citing a strong prima facie case in favor of the applicants. The Technical Member, referencing Supreme Court and High Court decisions, held that a prima facie case alone is insufficient for a blanket stay and emphasized the need to demonstrate financial hardship. He directed the first applicant to pre-deposit Rs. 4.5 crores and the second applicant Rs. 4 lakhs, considering the evidence of manipulation and the failure to demonstrate financial hardship.

Majority Order:
The third Member, concurring with the Technical Member, concluded that the first applicant had not prima facie established the use of the required percentage of fly ash and had not made out a case for a blanket waiver. The second applicant was found to have abetted the first applicant. The majority order directed the first applicant to pre-deposit Rs. 4.5 crores towards duty and the second applicant Rs. 4 lakhs towards penalty within six weeks, with a stay on the recovery of the balance amount pending the appeals.

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