2015 (11) TMI 960 - HC - Central Excise

Waiver of pre deposit - whether the CESTAT was correct in coming to the prima facie conclusion that the Appellant failed to make a case for full waiver of duty and penalties. - Held that - A foundational fact that would have to be shown to exist by the Department for attracting the deeming fiction under Rule 18 (2) of the Rules is that the goods were found to have been manufactured in or cleared from the premises searched. The CESTAT, when it hears the appeals on merits, will have to address itself to the central issue of whether the evidence on record demonstrates that the Appellant as Noticee No.1 could be said to have been party to the clandestine manufacture and removal of chewing tobacco using the machines found at the premises. This would also have to be examined in the context of the fact that a separate SCN has been issued to Mr. Kunal Indoria arising from the same search. The effect of the retraction of the statement made by Mr. Kunal Indoria and the requirement that there must be sufficient other evidence to corroborate the said retracted statement would also have to be examined in detailed by the CESTAT. Court would not like to express any opinion on the merits of the above contentions given the limited scope of the present appeal, and particularly since the CESTAT will have to deal with the appeal before it on merits. Having examined the order of the Commissioner in light of the submissions of learned counsel for the parties, as noted hereinbefore, the Court is satisfied that the Appellant has made out a prima facie case for waiver of the deposit of the duty, penalty and interest. The CESTAT has not given any reasons for coming to the conclusion to the contrary in the impugned order. None of the above contentions of the Appellant have merited consideration by the CESTAT even for the limited purpose of deciding whether a case for waiver of pre-deposit was made out. - Appeal disposed of.

Summary

Issues:
Appeal under Section 35-G of Central Excise Act, 1944 against CESTAT's order for pre-deposit of Central Excise duty and penalty.

Analysis:
1. The appeal was filed against CESTAT's order directing the appellant to make a pre-deposit of Rs. 15,00,000 within eight weeks. The CESTAT's order did not thoroughly examine the submissions on merits, only providing brief reasons for the decision.

2. The case involved a search at the premises where machines were found for manufacturing chewing tobacco without proper registration and duty payment. The Department alleged clandestine manufacturing based on evidence gathered during the search and subsequent investigations.

3. The Commissioner's order detailed the evidence collected, including statements from individuals involved in the case. The appellant's defense included lack of electricity connection and motors for operating machines, as well as the claim that seized goods were defective and returned duty clear goods.

4. The appellant argued that the Commissioner failed to address key defenses and evidence, emphasizing the timing of premises rental and machine purchase. The defense challenged the application of Rule 18(2) of the Rules based on lack of evidence.

5. The Court addressed the question of whether the CESTAT was correct in its prima facie conclusion regarding the appellant's failure to make a case for full waiver of duty and penalties. The central issue was whether evidence showed the appellant's involvement in clandestine manufacturing.

6. Both counsels cited the Supreme Court's decision on "undue hardship" in stay applications. The Court refrained from expressing an opinion on merits but found the appellant had made a prima facie case for waiver of the deposit, as CESTAT did not provide reasons for the contrary conclusion.

7. The Court modified the CESTAT's order, directing the appeal to be heard without the requirement of pre-deposit. The appeal was disposed of accordingly.