2013 (12) TMI 342 - AT - Central Excise

Export obligation not fulfilled - Goods partly diverted out of EHTP - Violation of post-import conditions of the Notification No. 13/81-Cus. read with Notification No. 53/97-Cus. Contravention of the condition of Bond and Notification No. 1/95-CE and under Rule 196 of the erstwhile Central Excise Rules, 1944 - Central Excise duty benefit availed on the indigenous material procured under CT-3 - Held that - The applicant had not intimated the non-availability of the relied upon documents but they only requested for extension of time to file reply to the show-cause notice - they have not filed any reply to show-cause notice - the jurisdictional Superintendent stated that in the factory location, there is no building or machinery belonging to the applicant but a housing project is being executed at that site by another company by name M/s. Akshaya Pvt. Ltd. - BIFR recorded that the possession of the assets of applicant-company has been taken over by M/s. Kotak Mahindra Bank Ltd. under Section 13(4) of SARFAESI Act and abated the reference in accordance with third proviso to Section 15(1) of SICA - the secured creditors and Government Departments are at liberty to file/pursue suit, if already filed, before the competent court of law to recover the dues from the company. Non-production of References Waiver of Pre-deposits of Excise duty as well as custom duty Held that - The applicants have failed to produce any reference that official liquidator stands appointed in the matter - at the location of the factory a housing project is being constructed by Akshaya Pvt. Ltd. - the applicants directed to deposit the entire amount of customs duty and the excise duty along with interest as pre-deposit stay not granted.

Summary

Issues:
- Application for waiver of pre-deposit of customs duty and excise duty along with penalties and interest.
- Allegations of violation of post-import conditions and export obligations.
- Violation of principles of natural justice and lack of opportunity of hearing.
- Dispute regarding the appointment of official liquidator.
- Direction to deposit entire amount of customs duty and excise duty.

Analysis:
1. Application for Waiver of Pre-deposit: The company filed an application seeking waiver of pre-deposit of customs duty, excise duty, penalties, and interest amounting to significant sums. Penalties were imposed on specific individuals under relevant sections of the Customs Act and Central Excise Rules. The demand was based on alleged violations of post-import conditions and export obligations, leading to the confirmation of duty amounts with interest and penalties.

2. Violation of Principles of Natural Justice: The company argued that the adjudication order was passed in violation of natural justice principles as they were under the official liquidator at the time of the show-cause notice issuance. They claimed a lack of opportunity for a fair hearing as the order was passed swiftly without allowing adequate time for response or representation. The absence of the official liquidator's involvement in the proceedings was also raised as a procedural flaw.

3. Appointment of Official Liquidator Dispute: The dispute regarding the appointment of the official liquidator was a crucial point of contention. The company asserted that the official liquidator should have been made a party in the proceedings before the adjudicating authority. However, the tribunal noted the absence of concrete evidence to support the claim of the official liquidator's appointment, and instead, highlighted the ongoing housing project at the factory location by another entity, indicating a potential change in ownership or control.

4. Direction to Deposit Duty Amounts: After considering the arguments from both sides and examining the records, the tribunal found merit in the submissions of the respondent. Given the circumstances and the lack of conclusive evidence supporting the company's claims, the tribunal directed the applicants to deposit the entire amounts of customs duty and excise duty, along with interest, within a specified timeframe to secure the revenue's interest. Compliance was required within six weeks, with the waiver of pre-deposit of penalties upon such deposit, and a stay on recovery pending the appeal's disposal.

This detailed analysis of the judgment highlights the key issues addressed, arguments presented, and the tribunal's decision, providing a comprehensive overview of the legal proceedings and outcomes.