2015 (10) TMI 1349 - AT - Central Excise

Waiver of pre deposit - Imposition of penalty - whether the applicant who declared themselves as a manufacturer is in fact manufacturer or a trader; the said fact rests on appreciation of evidences - Held that - Considering the financial hardship expressed on behalf of the applicant and the amount already deposited during adjudication, in our view the offer to deposit ₹ 20.00 Lakhs at this stage seems to be reasonable. Accordingly, in the interest of justice, the applicant is directed to deposit ₹ 20.00 Lakhs within a period of eight weeks and report compliance on 28.9.2015. On compliance, the balance dues adjudged against the applicant No.1 and all dues against applicant No.2 would stand waived and its recovery stayed during the pendency of the appeal - Partial stay granted.

Summary

Issues: Application for waiver of pre-deposit of duty and penalty under Rule 26(1) of Central Excise Rules, 2002.

The judgment addresses an application seeking waiver of pre-deposit of duty amounting to Rs. 5.59 Crores and an equal penalty, along with a personal penalty of Rs. 20.00 Lakhs on an individual under Rule 26(1) of Central Excise Rules, 2002. The applicant argued that despite declaring themselves as a manufacturer to qualify for a tender, they were actually a trader, and the demand raised by the department had no legal basis as it was solely based on a statement made by the Constituted Power of Attorney of the applicant firm. The applicant also highlighted the absence of incriminating documents during the investigation period. The applicant, through their senior advocate, expressed financial hardship and offered to deposit Rs. 20.00 Lakhs in addition to the amount already deposited. The Revenue's representative reiterated the findings of the Commissioner. After hearing both sides and examining the records, the Tribunal considered whether the applicant was a manufacturer or a trader, emphasizing the need to assess the evidence. Acknowledging the financial difficulties faced by the applicant and the amount already deposited, the Tribunal deemed the offer to deposit Rs. 20.00 Lakhs reasonable. Consequently, the Tribunal directed the applicant to deposit the specified amount within eight weeks, with non-compliance leading to dismissal of the appeals without further notice. Compliance would result in the waiver of balance dues against one applicant and all dues against another, with the recovery stayed during the appeal's pendency.