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TMI Blog2008 (5) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... d of over Rs. 4.39 crores (Rupees four crores thirty-nine lakhs), as well as interest thereon and he has also imposed a penalty of over Rs. 4.39 crores (Rupees four crores thirty-nine lakhs) on the Appellants. Before an Appeal can be taken up for hearing, the appellants are required to predeposit the duty, interest and penalty in terms of the provisions of Section 129E of the Customs Act, 1962. The Appellants while filing this Appeal on 29-6-07 also filed a Stay Petition on the same day seeking waiver of the predeposit after having indicated that they have not paid any amount towards the duty, interest and penalty. 3. The Stay Petition dated 29-6-07 was heard by this Bench on 14-1-08 when Dr. Samir Chakraborty, learned Advocate appeared b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate for the Appellants, a longer period of time for eight weeks was also granted by the Bench and then the Order was dictated in presence of the learned Advocate appearing for the Appellants and the learned J.C.D.R. appearing for the Department, immediately after conclusion of the hearing of the Stay Petition. 4. Instead of complying with the direction to pre-deposit contained in the Stay Order No. S-68/KOL/2008 dated 14-1-2008, the Appellants have filed a Writ Petition No. 253 of 2008. The Appellants have not submitted a certified copy of the Hon ble High Court s Order but have shown us a photocopy of the Order through their Advocate, Shri Shovendu Banerjee. We find from such photocopy that there was no representation from the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble High Court that the Tribunal did not consider the merit of their Stay Petition, since the Company is sick and the Rehabilitation Scheme was yet to be finalised by BIFR. It was also submitted by the Appellants that they shall approach the Tribunal with a prayer for re-consideration of the Stay Petition in the light of the averments made in the Stay Petition. We also find that the Writ Petition has been disposed of by the Hon ble Court directing the Tribunal to consider the matter regarding the predeposit afresh, if it would be mentioned for re-consideration in the light of the submissions made in the Stay Petition. 6. We note from a letter addressed to the Appellants by Advocate, Shri Hasmukh Kundalia dated 7-5-08 that Dr. Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of the Test Report. (iv) Shri Banerjee also pleads that the demand is time-barred as the show cause notice has been issued after the normal period of raising the demand. (v) Shri Banerjee also pleads for total waiver of pre-deposit on the ground that the Appellants will not dispose of their assets during pendency of the Appeal. However, when asked by the Bench, he is unable to give details of the assets of the Appellant Company and also adds that he is not in a position to undertake on behalf of the Appellants that the assets will not be disposed of, when the Appeal is pending. Shri Banerjee, learned Advocate does not have any other submission to make in support of the Stay Petition except submitting that the entire amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not use the imported raw materials and also to discard their claim for exemption. According to him, it was not necessary for the Department to give percentage of the ingredients, as the Appellants were not allowed to use any imported materials in the goods sold in the DTA. 11. We have considered the submissions from both sides. We note that the Appellants have submitted only the Annual Report of the Appellant Company for the year, 2005-06. The recent Balance Sheets have not been submitted. Shri Banerjee, learned Advocate for the Appellants is not able to show us the terms of Rehabilitation Scheme from the papers relating to Appellants BIFR status. One of the papers shown by him appears to be an Order dated 2-6-03 passed by the Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to the exemption. The Appellants are required to strictly comply with the conditions of the exemption Notification and the Department has discharged its initial burden by showing presence of imported materials in the samples tested in the Chemical Laboratory. However, the detailed submission regarding use of the imported materials in the impugned goods can be examined and appreciated only at the stage of final hearing of the Appeal. But, prima facie, we find that the Appellants do not have a case in their favour and the balance of convenience lies in favour of the Revenue in view of the Chemical Test Report which says that the samples contained ineligible imported materials. 13. Shri Banerjee has also taken up the question of deman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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