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TMI Blog1989 (9) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... t date in addition to the amount which has already been deposited by them. We, hereunder, set out our reasons for the same : The appellant had filed an application for stay vide application No. E/Stay/1389/88-C and after hearing the parties by an order dated 21-10-1988, the appellant was directed to deposit Rs. 10 lakh in cash in four equal installments of Rs. 2,50,000/-each starting from November, 1988 and ending in February, 89. It may be noted that by the impugned order passed by the Collector (Appeals), the appellant was called upon to pay Rs. 3180421.86 as duty and Rs. 30,00,000.00 as penalty. It has been noted in the order that undisputed duty amount is Rs. 8,95,584.99 and that the appellant was ready to deposit the same amount in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein, that if the appellant fail to comply with the order, the stay order shall stand vacated automatically. No directive was given regarding guarantee Bond. 3. Thereafter, the appellant sent a letter which was received in the Registry on 13-4-1989 whereby the appellant stated that the company were doing its best to honour the demand (as per order passed granting monthly instalment of Rs. 1.50 lakh each) in time before the final hearing on 29-5-1989. The appeal came up for hearing on 22-5-1989 and by Misc. Order No. 92/89C, the Bench directed that the letter may also be posted for mention on 29-5-1989. Thereafter, another application, which was received in the Registry on 26-5-1989, was submitted by the appellant which was registered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny have been declared relief undertaking, even though vacancies of few Directors have been filled, they can function after approval of the Government of India and the Company Law Board and till then no new loan can be raised, and so the company is unable to pay balance amount and so the payment of remaining amount be waived. When the matter came up for hearing on 28-8-1989, L.A., Shri Jain, for the appellant, declared that the company had deposited a sum of Rs. 3.5. lakh and Rs. 5,45,584.99 remained to be paid out of admitted duty liability of Rs. 8,95,584.99. 5. At hearing L.A., Shri Jain, referred to another application submitted in Registry on 30th August, 1989 under his own signature and which is registered at E/Misc./548/89C and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the months of November, June, April and May, the factory ran for 10 days or less than that. At page 10, is a list of sales details from December 188 to June, 89 and it can be seen that company is trying to produce and sell. At page 11 is the production and despatch details for the same period and it can be seen that production was erratic. Some letter of creditors are also produced. At page 19, is overdraft statement of State Bank of India and as per that, on 23-2-1989, the total overdraft was for Rs. 26,81,862.92 while at page 20, it shows position of overdraft as on 31-1-1989 which is Rs. 23,82,066.12. Page 25 shows overdraft as on 30-6-1989 which is Rs. 29,81, 066.36. At page 26, is the list of sundry creditors and the total is Rs. 35 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee as a relief undertaking), it is not necessary to direct the excise authorities not to enforce the demand. Shri Jain admitted that in Bombay case, the recovery was specifically suspended while in the present case, the notification does not affect the Central Excise dues. He requested that the order can be looked into in support of his contention that pre-deposit can be waived. He also cited lndotex Machinery Works v. Assistant Collector of Central Excise - 1987 (28) E.L.T. 265 (Mad.) (it should be Gujarat), wherein it is held that stay once refused does not operate as res judicata if party renew request for stay by placing necessary material for justification of the interim relief earlier refused. L.A., Shri Jain, submitted that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company is unable to raise additional finance. We have also noted that the Executive Director is investing his own money, to keep the company going and it will not be proper to force him to invest his own funds for payment of excise dues. It is true that part of the amount is an admitted liability but then, in our view, this is a fit case wherein the company should not be constrained to pre-deposit the entire amount as earlier directed, otherwise the company will not be in a position to contest the appeal on merits, as it may be dismissed for non-compliance of the order. 11.So, we have accepted the application partly and after considering all the circumstances, we have passed the above order, modifying the earlier orders passed in E/St ..... X X X X Extracts X X X X X X X X Extracts X X X X
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