2015 (11) TMI 1030 - AT - Central Excise

Waiver of pre deposit - modification application - Suppression of production - Clandestine clearances - Held that - Evidence of suppression of production and clearances is in form of the data retrieve hard disks recovered from the premises of the headquarters of the group companies. The tribunal in the stay order given a prima facie findings that the hard disk recovered from the headquarters of the group companies pertain to the appellant company and the clearances reflected therein are not accounted for statutory Central Excise records. If this is the prima facie finding of the Tribunal in the stay order and a prima facie view has been taken on the basis of material on record that the appellant company has suppressed its production and clearance, a logical conclusions of this would be that no sanctity can be attached to their profit and loss account or their claim of the company being in losses. In view of this, so far as the appellant company is concerned, we do not find any justification for modifying the quantum of pre-deposit. - However, as regards, the quantum of pre-deposit in respect of Shrivats Rathi is concerned, the same is reduced to Rs. One lakh.

Issues:
1. Modification of stay order directing pre-deposit amount by the Tribunal.
2. Financial distress of the appellant company and its director.
3. Allegations of duty evasion and clandestine clearances.
4. Prima facie findings of suppression of production and clearance.

Issue 1: Modification of Stay Order:
The Tribunal had directed the appellant company to pre-deposit a specific amount in installments. The appellants appealed to the High Court for modification. The High Court disposed of the appeal with liberty to move an application before the Tribunal for modification. The appellants filed a miscellaneous application for the same. The Tribunal considered the submissions and records. The duty demand against the appellant company was confirmed due to alleged under-reporting and clandestine clearances. The Tribunal found no justification for modifying the pre-deposit amount for the company. However, the pre-deposit amount for the director was reduced to Rs. One lakh. The modified stay order required compliance within 12 weeks.

Issue 2: Financial Distress:
The appellant company claimed financial distress based on bank statements and letters to the bank. The company argued that it was not in a position to pay the directed amount due to heavy debts. The Tribunal, however, noted that the allegations of duty evasion and clandestine clearances raised doubts on the company's financial position. The Tribunal concluded that the profit and loss account or bank statements could not be relied upon to reflect the actual financial status of the company, given the prima facie findings of suppression of production and clearance.

Issue 3: Allegations of Duty Evasion:
The appellant company faced allegations of duty evasion through clandestine clearances and under-reporting of production. Evidence of suppression was found in hard disks recovered from group companies' premises. The Tribunal's prima facie findings indicated that the appellant company had not accounted for clearances in statutory records. The opposition argued that the company's profit and loss account or bank statements could not be trusted in light of these allegations.

Issue 4: Prima Facie Findings of Suppression:
The Tribunal's stay order contained prima facie findings that the hard disks recovered were linked to the appellant company and showed unaccounted clearances. These findings led to the conclusion that the company's claims of financial distress could not be accepted at face value. The Tribunal upheld the pre-deposit amount for the company but reduced it for the director. Compliance with the modified order was required within a specified timeframe.

The judgment addressed the modification of the stay order, the financial distress claimed by the appellant company, the allegations of duty evasion, and the prima facie findings of suppression of production and clearance. The Tribunal considered the evidence, including bank statements and hard disk data, to make a decision. The pre-deposit amount was upheld for the company but reduced for the director, emphasizing the importance of compliance with the modified order within the stipulated timeframe.

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