2014 (5) TMI 207 - AT - Central Excise

Waiver of pre deposit - Duty demand - Under valuation of goods - Bar of limitation - Held that - applicants cleared the goods at the higher value from the depot than the value at which duty has been paid at the factory gate. In applicants own case where the demand is confirmed on the same ground the Tribunal directed the applicant to deposit 50% for hearing of the appeal. In view of the earlier stay order, and keeping in view of the facts and circumstances of the case, the applicant is directed to deposit an amount of Rs.8,00,000 within six weeks in addition to the amount already deposited for hearing of the appeal - Matter remanded back - Decided partly in favour of assessee.

Summary

Issues Involved:
1. Waiver of pre-deposit of duty, interest, and penalty
2. Allegation of undervaluing goods for duty payment
3. Time-barred demand and suppression of facts
4. Willful suppression with intent to evade payment of duty
5. Compliance with stay order requirements
6. Appeal dismissal without considering merits

Analysis:

1. The applicant sought a waiver of pre-deposit of duty, interest, and penalty amounting to Rs.31,64,063. The demand was confirmed due to alleged undervaluation of goods for duty payment. The Commissioner (Appeals) directed the applicant to deposit 50% of the total dues for the appeal hearing, which the applicant failed to comply with, leading to the dismissal of the appeal without merit consideration.

2. The applicant contended that a major portion of the demand was time-barred, as the show cause notice was issued in February 2009 invoking the extended period for a demand spanning from 2003-04 to January 2009. The applicant argued that since the Revenue was aware of the undervaluation issue through regular audits, the suppression allegation was not sustainable. The applicant had already paid the duty for the normal period of Rs.7,90,364, making a case for total waiver of duty for the appeal hearing.

3. The Revenue countered by stating that the applicant had not disclosed the practice of clearing goods at a higher value from the depot, indicating a willful suppression of facts to evade duty payment. The Revenue argued that the extended period demand was justified due to this suppression. The Tribunal noted that in a previous case involving similar grounds, the applicant was directed to deposit 50% for the appeal hearing.

4. Considering the facts and circumstances, the Tribunal directed the applicant to deposit an additional amount of Rs.8,00,000 within six weeks, in addition to the amount already deposited, for the appeal hearing. The Commissioner (Appeals) had not decided the appeal on merits, leading to the setting aside of the impugned order and remanding the matter for a decision on the appeal's merits after the required deposit and a hearing opportunity for the appellant. The appeal was disposed of by way of remand.