2014 (4) TMI 43 - AT - Central Excise

Waiver of pre deposit - Penalty u/s 11AC - Clandestine removal of goods - Held that - As regards the demand of duty evaded on the ground of clearance of Texturised Yarn in the form of job work done for M/s. S.B. Textiles, I find that both the lower authorities have recorded findings which indicate that M/s. S.B. Textile, though registered, did not file any return before the lower authorities or filed a nil return. It is also on record that it is admitted fact that S.B. Textile is fake and non-existent unit. If that be so, in my view, the job work which has been carried for him, needs to be substantiated, which has not been done in this appeal - Conditional stay granted.

Summary

Issues: Stay petitions for waiver of pre-deposit Central Excise duty, interest, penalty; Clandestine removal; Clearance of goods in guise of job work to non-existent unit; Financial hardship evidence required.

Analysis:
1. The stay petitions were filed seeking the waiver of pre-deposit Central Excise duty, interest, and penalty imposed on the appellant company and an individual. The amounts were confirmed by the adjudicating authority and upheld by the first appellate authority based on allegations of clandestine removal and clearance of goods in the guise of job work to a specific entity.

2. The appellant's counsel argued that a partial deposit had already been made in relation to the clandestine removal of goods. However, regarding the demand for the remaining amount, it was contended that proper documentation was maintained for the job work done for the mentioned entity, which allegedly did not receive the goods as claimed by the authorities. The appellant also cited issues with receiving the show cause notice.

3. The departmental representative countered by questioning the legitimacy of the job work done for the mentioned entity, highlighting discrepancies in the records of the supposed recipient. The representative pointed out that the entity had not filed any returns, indicating a lack of actual transactions with the appellant.

4. After considering the submissions and examining the records, the judge found that the appellant had sufficiently deposited the duty liability related to clandestine removal. However, in the case of the demand for duty evaded through job work, the judge noted that the entity receiving the goods was non-existent and fake, casting doubt on the legitimacy of the job work claimed by the appellant.

5. The judge, in the absence of evidence demonstrating financial hardship, directed the appellant to deposit a specified amount within a set timeframe. Compliance with this directive would allow for the waiver of pre-deposit of the remaining amounts, with recovery stayed until the appeals were disposed of. The decision was made to ensure that the appellant fulfilled certain conditions for the continuation of the appeals process.