9911796707
TMI Blog2008 (9) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of notification are reproduced below : (The exemption contained in the notification shall apply only to the following kind of units namely) (a) New industrial units which have commenced their commercial production on or after the 7th day of Jan 03. (b) Industrial units existing before the 7th day of Jan 03, but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty five percent, on or after the 7th day of Jan 03 . The claim of the applicant is under clause 2(b) of the notification. 3. The contention of the applicant is that as the unit of the applicant was existing unit and they had undertaken substantial expansion after 7-1-03 and that has been proved by produci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant also pleaded on financial hardship that their unit has been declared sick by the order passed by the Board of Industrial and Financial Reconstructions vide order dt. 16-1-03. The applicant also relied upon the decision of the Tribunal in the case of Sagarika Acoustronics Pvt. Ltd. v. CCE reported in 2008 (222) E.L.T. 252 whereby the Tribunal after taking into consideration the direction given by the Hon ble Supreme Court in the order dt. 7-3-07 waived the pre-deposit of duty and penalty. The Hon ble Supreme Court directed the Tribunal to consider the financial hardship in view of the fact net worth of the company and if the net worth of the company is found to be negative, then the Tribunal will consider without asking for pre-deposit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city by not less than 25% on or after 7-1-03. The applicant s contention is that as the production in respect of increase in capacity has been started after 7-1-03 and they have invested Rs. 40 lakhs after 7-1-03, they are entitled for the benefit of notification. We find that the investigation was conducted during the inspection. Shri Jai Veer Singh (Engg.) and Shri R.K. Agarwal (Finance) submitted details of the machine installed and procured yearwise. The statement of procurement and installed machines were mentioned in detail. In the adjudication order for ready reference, the same is reproduced : The unit has carried out works in their plant during the year 1999-2000 (a) Dismantling work of old pipe lines and replacement with n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n negative and their unit has been declared sick by the BIFR. We find that the Hon ble Supreme Court in the case of Metal Box India Ltd. (supra) held that payment of pre-deposit covered under Section 35F of the Central Excise Act, 44 does not fall under any of the enumerated categories in Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, protection thereunder not available to the assessee. Hon ble Supreme Court held as under : 3. Mr. Rana Mukherjee, the learned Counsel for the appellants, submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the Sick Industries Act ), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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