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TMI Blog1991 (3) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate has appeared on behalf of the applicants and pleaded that the applicants are manufacturing telephone instruments and had imported capital equipment for setting up the plant and had claimed assessment under Heading 98.01 under the project import and had claimed the benefit of Notification No. 315/83 dated 26th November, 1983 as amended from time to time. Shri Srivastava argued that initial raw materials have to be 10% of the total value of the project and have to be allowed under the project import adding concessional rate of duty. He pleaded that the duty of Rs. 58,27,054.00 is differential duty on account of denial of the project import and the appellant has also been penalised for Rs. 15,00,000.00. Shri Srivastava argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-2-1988 and No. 005826 dated 1-2-1988 with Examination Reports covering the consignments are required essentially to substantiate their case." Shri Srivastava pleaded that this letter was sent by the appellants per registered A.D. post as well as under certificate of posting on 16th July, 1990 to the Collector of Customs, Madras, whereas the impugned order is dated 16th July, 1990 and the Collector had signed the same on 16th July, 1990. He argued that by no stretch of imagination the letter by registered A.D. post and under certificate of posting could reach from Hyderabad to Madras on the same day. In support of the same, he has filed photo copy of the postal receipt No. 2113 dated 16th July, 1990 of Khairaibad Post Office. He also st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the same, but are for the trading activity of the applicants. On the financial aspect of the applicants, Shri Arora fairly stated that the applicant s unit is a loss going unit and there are recurring losses from year to year. On the point of natural justice, Shri Arora stated that he has received information from the Collector that the letter dated 16th July, 1990 sent by the applicants was received in the office of the Collector on 18th July, 1990. Shri Arora further referred to page 12 para 18 of the impugned order where it has been mentioned that repeated opportunities have been given to the appellant. However, he argued that the revenue s interests should be protected. As to the offer of the learned advocate, he leaves it to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the year ending 1987-88, 1988-89 and 1989-90 shows that it is a loss-going concern. Shri Srivastava during the course of arguments had mentioned that in case the applicants are to make cash deposit, the company will go into liquidation. 6. Keeping in view the totality of the facts and circumstances of the case and keeping in view the judgment of the Supreme Court in the case of Spencer and Co. Ltd. v. Collector of Central Excise relied upon by the Tribunal in the case of Sonodyne Television Co. v. Collector of Central Excise, Calcutta reported in 1985 (22) E.L.T. 582, we told that balance of convenience has to be taken into account before a stay is granted. The Hon ble Supreme Court in Application No. 332/84 in appeal No. 693/84 M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port compliance of this order to the Registry within eight weeks from today. It is further ordered that during the pendency of the appeal, the applicants shall keep the bank guarantee alive and if necessary, to be renewed from time to time and intimate the Collector as well as the Tribunal regularly. We further order that if the applicants comply with the terms of this order, the revenue authorities shall not pursue the recovery proceedings for the balance duty and penalty amount. In case the applicants fail to comply with the terms of this order, the stay order shall stand automatically vacated. It is further ordered that during the pendency of the appeal, the applicants shall not alienate and put to further encumbrance any immovable or mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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