2014 (2) TMI 501 - AT - Central Excise

Waiver of predeposit of duty - Imposition of equal amount of penalty - Suppression of the production of M.S. ingots and removal thereof without payment of duty - Removal of manufactured goods clandestinely - Held that - Mumbai Bench of this Tribunal in Shridhar Castings case (2012 (9) TMI 170 - CESTAT, MUMBAI), while disposing of a bunch of stay applications, involving similar dispute, had analyzed the issues in the light of various judgments on the subject, including RA casting s case (2008 (6) TMI 197 - CESTAT NEW DELHI), in detail, and directed pre-deposit of 50% of the duty confirmed and 25% of penalty against each of the applicants. - Further in view of the decision of Division Bench of the Bombay High Court in Orange Alloys Pvt. Ltd.(2012 (11) TMI 374 - BOMBAY HIGH COURT), disposing of appeals under Section 35G of CEA,1944, applicant has not been able to make out a case for full waiver of the dues adjudged. - Conditional stay granted.

Summary

Issues Involved:
1. Waiver of pre-deposit of duty and penalty.
2. Alleged evasion of central excise duty by suppressing production and clandestine removal of M.S. ingots.
3. Validity of technical reports and evidence presented.
4. Comparison with similar cases and judgments.

Detailed Analysis:

1. Waiver of Pre-deposit of Duty and Penalty:
The application sought a waiver of pre-deposit of duty amounting to Rs. 11,36,00,787/- and an equal amount of penalty. The Tribunal directed the applicant to pre-deposit 25% of the duty confirmed within eight weeks, failing which the appeal would be dismissed. This decision was influenced by previous judgments where partial pre-deposits were deemed appropriate in similar cases.

2. Alleged Evasion of Central Excise Duty by Suppressing Production and Clandestine Removal of M.S. Ingots:
The case involved two show cause notices demanding central excise duty for the period April 2001 to February 2007. The department alleged that the applicant suppressed the production of M.S. ingots and removed them without payment of duty. The adjudicating commissioner initially decided against the applicant, leading to an appeal and subsequent remand for re-evaluation. The re-evaluation also resulted in a decision against the applicant, prompting the current petition.

3. Validity of Technical Reports and Evidence Presented:
The department relied on a technical report by Dr. Batra from IIT Kanpur, which set a norm of 1000 KVA units of electricity to produce one metric tonne of M.S. ingots. The applicant contested this, citing various factors that could lead to higher electricity consumption and presenting a Chartered Engineer's Certificate suggesting different consumption norms. However, the adjudicating commissioner found the applicant's records inconsistent and upheld the department's findings, noting that the applicant failed to provide a counter-technical report.

4. Comparison with Similar Cases and Judgments:
The applicant referenced the RA Castings Pvt. Ltd. case, where it was held that electricity consumption alone could not determine duty liability. The department countered with cases like Orange City Alloys Pvt. Ltd. and Shridhar Casting Pvt. Ltd., where higher courts upheld findings based on electricity consumption patterns. The Tribunal considered these precedents and concluded that the applicant's case did not warrant a full waiver of the pre-deposit.

Conclusion:
The Tribunal directed the applicant to pre-deposit 25% of the duty confirmed, with the balance dues waived and recovery stayed during the appeal's pendency. This decision was based on the inconsistency in the applicant's production records, the validity of the technical report by Dr. Batra, and precedents from similar cases. Compliance was to be reported by 24th March 2014.