9911796707
TMI Blog1994 (12) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under Heading 85.25 and of Cadmium Batteries under Heading 85.29 whereas the Revenue has assessed the same under Heading 85.27. He pleaded that classification list filed by the appellants was duly approved on 21st November, 1992 and the Show Cause Notice is dated 4th May, 1993 and period involved is October, 1992 to March, 1993. He pleaded that since the classification list has been approved, a stay should be granted. He also pleaded that the appellants unit is a sick unit and is under BIFR. He pleaded for grant of stay. 2. Shri Somesh Arora, the learned JDR who is present on behalf of the respondent pleaded that prima facie Revenue has got a good case on merits as the goods in dispute merit classification under Heading 85.27. He ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be appropriate. Since the matter is sub judice, further observations at this stage will not be proper. We were told by the appellants that it is a unit which has been declared sick under BIFR and as such, the amount should be stayed. This Tribunal had occasion to deal a similar matter in the case of Maharashtra Tubes Ltd. v. Collector of Customs, Bombay, reported in 1994 (1) RLT 23 (CEGAT-A). Relevant extract from the said judgment is reproduced below :- Now we come to the appellant s plea for BIFR. For the proper appreciation of the legal position, Section 3(1)(a), Sections 22 and 25 of the Sick Industrial Companies (Special Provisions) Act, 1985 are reproduced below :- [Para 9] In the matter before us an appeal is pending bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undoubtedly a coercive measure directed at the take over of the management and property of the industrial concern and confers a further right on the Financial Corporation to transfer by way of lease or sale of properties of the said concern and any such transfer effected by the Financial Corporation would vest in the transferee all rights in or to the transferred property as if the transfer was made by the owner of the property. So also under the said provisions the Financial Corporation will have the same right and powers with respect to goods manufactured [or] produced wholly or partly from goods forming part of the security held by it as it had with respect to the original goods. It is, therefore, obvious on a plain reading of Section 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the present appellants before us are concerned, they have made a prayer for dispensing with the pre-deposit of the duty and penalty amounts". [para 9] A perusal of the same shows that the appellant is disputing the pre-deposit of the penalty and duty amounts. Discretion has been given to dispense with the same if the Tribunal is satisfied that there is undue hardship. Hon ble Supreme Court in the case of Navin Chandra Chhotelal v. The Central Board of Excise Customs, New Delhi Others, reported in AIR 1971 SC 2280 had held that the right given by the statute for filing an appeal is conditional right and if the appellant does not satisfy the condition, it cannot be said that the Tribunal must dispense with the pre-deposit . [Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of M/s. Chandigarh Paper Board Mills (P) Ltd., Chandigarh v. C.E.G.A.T. Ors. reported in 1994 (70) E.L.T. A151 had held as under :- Issue notice. The petitioner-Mills state that they have already deposited Rs. 50,000/- on 8th of February, 1994 out of the amount of Rs. 3 lacs. If the petitioners deposit the amount of Rs. 2,50,000/- at the rate of Rs. 50,000/- per month on or before the 10th of each month in five monthly instalments, the appeal will be taken up for hearing by the Tribunal. The first of such instalment to be paid on or before the 10th April, 1994. No defaults will be permitted. There will be an ad interim stay of the impugned order of the High Court in the meanwhile." The present appeal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany. In my opinion therefore, Section 22 of the Act, cannot have the effect of preventing the Central Excise Authorities from demanding and collecting excise duty at the time of the removal of the manufactured goods, I make it clear that I am not concerned with a case of arrears of excise duty accumulated over a period of years. Therefore, the interim order of the Supreme Court of India referred to in the affidavit of the petitioner in Civil Appeal No. 1028 of 1990, would not, in my opinion, apply to the present facts of the case. In this connection the judgment of the Gujarat High Court in relation to the sales tax arrears collected from the purchasers, by the Government seems to be apposite. Section 11D of the Central Excise Act, also ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
