1997 (6) TMI 208 - AT - Central Excise

Issues Involved:
1. Dispensation of pre-deposit of duty and penalties.
2. Financial hardship of the appellants.
3. Abatement of dealers' margin.
4. Prima facie assessment of the lower authority's order.
5. Financial position of the Managing Director and Joint Managing Director.
6. Liability of M/s. Dolphin Motors.

Detailed Analysis:

1. Dispensation of Pre-deposit of Duty and Penalties:
The appellants sought dispensation of pre-deposit of duty and penalties as per the impugned order. The amounts involved were Rs. 71,03,832.62 in duty and Rs. 25,00,000 in penalties for Sipani Automobiles, and various penalties for other appellants including Dolphin Motors and individuals. The tribunal considered the financial position and prima facie merits of the case to determine the necessity of pre-deposit.

2. Financial Hardship of the Appellants:
The appellants claimed financial hardship, arguing they were unable to pre-deposit the demanded amounts. The tribunal noted that the appellants failed to submit balance sheets or detailed financial data, relying instead on unaudited results. The tribunal found this insufficient to fully assess financial hardship, observing that reserves and surplus were indicated as Rs. 306.23 lakhs, suggesting the appellants had sufficient funds.

3. Abatement of Dealers' Margin:
The appellants argued for abatement of the dealers' margin, stating that dealers were allowed a uniform margin of Rs. 21,000 per car. The tribunal acknowledged that dealers should be allowed some margin for sales, thus agreeing to consider a reduction in the pre-deposit amount based on this factor. However, the tribunal reserved judgment on other elements, to be addressed during the final hearing.

4. Prima Facie Assessment of the Lower Authority's Order:
The tribunal found no prima facie infirmity in the lower authority's order, which included reasoned findings on duty liability. The tribunal held that the lower authority's conclusions were sustainable in law, particularly regarding the extra realization over the invoiced value and other factors like trade discounts and Modvat credit.

5. Financial Position of the Managing Director and Joint Managing Director:
The tribunal noted that the appellants had not provided detailed financial information for the Managing Director and Joint Managing Director. The tribunal observed that the appellants used an "ingenious method" to receive the full sale price without informing the department, indicating no actual sale to M/s. Dolphin Motors. Consequently, the tribunal ordered both the MD and Joint MD to make a pre-deposit of Rs. 5.00 lakhs each, with the balance amount dispensed pending appeal.

6. Liability of M/s. Dolphin Motors:
The tribunal found that M/s. Dolphin Motors were complicit in the appellants' scheme to evade duty, as no actual sale was made to them. The tribunal upheld the lower authority's decision to impose penalties on M/s. Dolphin Motors, ordering a pre-deposit of Rs. 5.00 lakhs, with the balance amount dispensed pending appeal.

Conclusion:
The tribunal ordered the appellants to make specific pre-deposits by 30-7-1997 and report compliance by 31-7-1997. The pre-deposit amounts were:
- Sipani Automobiles: Rs. 40.00 lakhs towards duty and Rs. 3.00 lakhs towards penalty.
- Managing Director and Joint Managing Director: Rs. 5.00 lakhs each towards penalty.
- Dolphin Motors: Rs. 5.00 lakhs towards penalty.

The balance amounts were dispensed with pending appeal, and the tribunal scheduled a compliance report hearing for 31-7-1997.

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