2015 (10) TMI 680 - HC - Central Excise

Clandestine removal - whether the burning loss of 6% and 5.5% as claimed by the appellants gives rise to the loss of Revenue and whether showing such high rate of burning loss there was suppressed quantity manufacture and such quantity clandestinely removal - A wholesale formula was applied by the appellant to claim higher burning loss - held that - Tribunal has only directed payment of 15% of the duty demanded and has waived the pre-deposit of balance amount. The Tribunal has considered all the aspects and, prima facie, keeping in view the undue hardship to the appellant, the impugned order has been passed which is just and reasonable - no substantial question of law arises - Decided against assessee.

Summary

Issues involved:
- Appeal under Section 35G of the Central Excise Act, 1944 against the impugned order dated 30-4-2014
- Consideration of substantial questions of law by the Tribunal
- Prima facie case in favor of the appellant
- Actual demand against the appellant
- Hardship to the appellant if waiver of pre-deposit is not granted
- Justification of the Tribunal's decision to direct payment of 15% of the duty demanded

Analysis:
The judgment pertains to a bunch of three appeals, with the issue being identical in all cases. The appellant filed an appeal under Section 35G of the Central Excise Act, 1944 against the order passed by the Customs, Excise, and Service Tax Appellate Tribunal, New Delhi. The substantial questions of law raised included the legality and factual accuracy of the Tribunal's order, the appellant's entitlement to have the appeal considered on merits due to facing financial hardships, the existence of a prima facie case, sustainability of the actual demand against the appellant, and the potential undue hardship if waiver of pre-deposit is not granted.

The facts of the case revolve around the appellant, engaged in manufacturing M.S. Flats, being issued a notice for wrongly claiming burning loss. Despite responding to the notice, the demand was confirmed along with interest and penalty. The Tribunal initially directed a 25% deposit of the duty component, which was later reduced to 15% in the impugned order. The appellant contended that the pre-deposit condition was unreasonable and unjustified, emphasizing the absence of suppression of clearance and the initiation of proceedings based solely on an audit objection.

Upon hearing the appellant's counsel, the Court found no merit in the appeal. It noted that the Tribunal had only directed the payment of 15% of the duty demanded, considering all aspects and the undue hardship to the appellant. Consequently, the Court dismissed the appeals, stating that no substantial question of law arose. However, in the interest of justice, the Court extended the time for depositing the amount as directed by the Tribunal until a specified date, with a condition for the appeals to be heard on merits if the amount was deposited by the given deadline.

In conclusion, the judgment highlights the Court's assessment of the Tribunal's decision regarding the pre-deposit requirement, emphasizing the consideration of undue hardship to the appellant in determining the payment percentage. The Court's ruling focused on the justifiability and reasonableness of the Tribunal's order, ultimately leading to the dismissal of the appeals while providing an extension for the deposit deadline in the interest of justice.