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TMI Blog2004 (3) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/- imposed under Section 112(a) of the Customs Act, 1962 in terms of the said order. 2. Proceedings were initiated against the appellants by the DRI, by issue of show cause notice F No. VII/26/6/01/HRU, dated 28-3-2002 on allegation : (a) that in terms of Advance Licence No. 3288928, dated 11-1-94 the appellants imported 10,041.88 Kg of methylene chloride vide bill of entry No. 12684 and 12679, 5836.62 Kg of sodium metal vide bill of entry No. 16590 and 13,890 Kg of acetone without payment of duty by availing the benefit of Notification No. 203/92-Cus., dated 19-5-92, but as against this, they could export only 3,000 Kg of SMX as against the total export obligation of 48,000 Kg despite the licence was revalidated up to 11-11-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification, apart from confiscation of the excess raw materials under Section 111(o) of the Act ibid. The show cause notice also proposed adjustment of duty already paid by them to the tune of Rs. 3,16,041- apart from payment of interest and imposition of penalty. After due process of law, the impugned order was passed confirming the duty and penalty etc. as proposed in the show cause notice. 3. Shri R. Raghavan, learned Counsel appearing for the petitioners/appellants at the outset invited our attention to the written memorandum submitted by them to the Commissioner at the time of hearing. He has submitted that the appellants were issued with five Advance licences on different dates, but the entire allegation in the show cause notice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd they will not be able to recover any duty from the foreign customers. They are unable to find funds from their working capital for pre-deposit of the entire duty and penalty nor are they able to mobilize any funds as the scheduled banks are not willing to offer any credit facility to them. He, in the circumstances, prayed for waiver of pre-deposit of the entire duty and penalty pending disposal of the appeal. 4. Shri C. Mani, learned JDR on the other hand submitted that the finding of the lower authority regarding diversion of the imported sodium metal is based on the statement of senior officers of the appellants themselves. In the statement given before the officers, the production Manager has clearly stated that sodium metal is very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dispute is only in respect of the item Sodium metal imported. When the Commissioner himself admits that there was no dispute in regard to import of Methylene Chloride, covered by licence No. 3288928, dated 11-1-94 the duty pertaining to which is Rs. 1,07,755/-, it is not understandable as to how the total duty of Rs. 4,81,403/- which is inclusive of Rs. 1,07,755/- has been confirmed against the said licence. Further as regards the disputed item of Sodium metal is concerned, this item has also been imported against the remaining four licences under 21 consignments. The duty demanded on allegation that sodium metal imported was not actually used in the manufacture of SMX covered by these 21 consignments (4 licences) is Rs. 1,96,10,68/-. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic finding in regard to the duty demanded in respect of the material sodium metal covered by four licences/21 consignments. There is no detailed finding as to how the Revenue has arrived at the figure of duty of Rs. 86,81,059/- covered by the said four licences. The allegation made pertaining to a particular licence cannot be made applicable to other licences simply because the item imported happened to be the same viz. Sodium metal. The appellants have also submitted that they are faced with acute financial crunch and they are not able to mobilize any funds for making pre-deposit as the Banks are not willing to extend any credit facility. They have also submitted that the appellants will not be able to recover the duty now demanded from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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