9911796707
TMI Blog1989 (9) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed. Shri N. Mookherjee, the learned Advocate who has appeared on behalf of the Applicants, has reiterated the contentions made in the stay application. He has pleaded that the duty amount of Rs. 53,99,058.60 and penalty amount of Rs. 10,000,00/- may be dispensed with. The period pertains to the years 1984-85 to 1987-88 and the show cause notice is dated 29th April, 1988. A search was conducted on 3rd November, 1987 and it was contended by the applicants that they were carrying on only repairs of armature and armature so repaired could not be sold in the market and were also making insulating material. The Mica segments so repaired could not be sold in the market and the existence of the factory was well within the knowledge of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability must be proved. Just because a product is mentioned in the Tariff Schedule, it does not follow that it is dutiable. On the aspect of limitation, Shri Mookherjee stated that most of the demand is hit by limitation. In support of his argument, he has referred to the judgment of the Hon ble Supreme Court in the case of Collector of Central Excise v. Chemphar Drugs Liniments reported in 1989 (40) E.L.T. 276 (S.C.) Shri Mookherjee has pleaded for the grant of stay. 3. Shri K.D. Tayal, the learned SDR, who has appeared on behalf of the respondent, opposes the grant of stay. He relies on the order-in-original and states that there was suppression of facts on the part of the applicants. The applicants even did not care for obtaining th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to be dutiable under the Schedule to Central Excise Tariff Act, 1985.... The crude PVC films as produced by the appellant in this case were not known in the market and could not be sold in the market and was not capable of being marketable. In view of the Appellate Collector s order .... it was the duty of the revenue to adduce evidence or proof that the articles in question were goods. No evidence or proof was produced. The Tribunal went wrong in not applying the proper test. The test of marketability or capable of being marketed was not applied by the Tribunal. In that view of the matter that there being no contrary evidence found by the Tribunal in this case subsequent to the finding by the Appellate Tribunal, we are of the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any act, is a question of fact depending upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Mookherjee fairly stated that the applicants can pay Rs. 5,00,000.00. Since there is no balance-sheet on record, we had also rejected the request of the learned Advocate for the grant of adjournment. The correct financial position of the applicants cannot be ascertained. The Hon ble Delhi High Court in the case of Uptron Powertronics v. Collector of Central Excise, Meerut reported in 1987 (28) E.L.T. 61 had held that in deciding the stay applications, the prime facie merits have to be gone into and this Tribunal has earlier been following this practice. 5. Keeping in view the totality of the facts and circumstances of the case, we are of the view that if the applicants are desired to deposit the full duty and penalty amount of Rs. 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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