9911796707
TMI Blog2009 (4) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... v Aggarwal, Advocate, for the Appellant. Shri K.K. Goel, Jt. CDR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard the learned Advocate for the applicants and the learned Jt. CDR for the respondent. 2. These are applications for stay in relation to pre-condition of deposit of the amount demanded under the impugned order in terms of Section 35F of the Central Excise Act, 1944. Since common questions of law and facts arise in both the applications, they were heard together and are being disposed of by this common order. 3. By the impugned order, the Commissioner has, while holding that the appellants had wrongly availed Cenvat credit of Rs. 50,30,033/- for the period March-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced a copy of the letter of the acknowledgment dated 18-11-2008 under which the appellants had received copies of various documents. He placed reliance in the decision of the Bombay High Court in the matter of Silicon Graphics System (India) Private Limited v. Union of India reported in 2006 (204) E.L.T. 247 (Bom.), while contending that failure on the part of the department to furnish the copies of the documents relied upon by them while issuing the show cause notice to the appellants has actually resulted in non-compliance of basic principles of the natural justice. Hence there is a very good case for the appellants on merits and therefore, direction to deposit the entire amount demanded under the impugned order would result in undu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/32/2006 dt. 3-5-07 in the case of M/s. Vishwakarma Alloys Ltd., Ludhiana - supply of documents resumed from the premises on 19-4-06. In reference to the above show cause notice it is hereby submitted as under :- That the Preventive Officers of Central Excise, Ludhiana visited our premises on 19-4-06 and remained there till 20-4-06.They resumed various records from our premises. Now, above show cause notices have already been issued therefore, we request you to supply the following documents :- (i) Sales Book/Purchase Book/Stock Registrars both excisable and non-excisable for last 6 years (ii) Ledgers and cash/day book for last 6 years (iii) Purchase and sales bills both excisable and non-exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asking for copies of the documents was written on 16-4-2008. Copies of the documents were received on 18-11-2008. The impugned order came to be passed on 21-11-2008. There is nothing on record to suggest even remotely that from 18-11-2008 till 21-11-2008 any attempt was made by the appellants to seek time to file any reply as such to the show cause notice. 8. There is no explanation on record as to what prevented the appellant from approaching the department to get the copies of the documents prior to 16-4-2008. All these facts apparently disclose that the appellants were merely interested in delaying the matter on one pretext or other. Even today, in the course of arguments, repeated the submission on behalf of the appellants was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for their defence. Such request was repeated under letters dated 30-11-2005, 9-12-2005 and 16-12-2005. It was only on 16-12-05 the assessee was informed that the copies of the documents can be collected on any working day with prior appointment. The assessee collected the copies of the documents on 21-12-05 and on that very day requested for one month's time to file reply to the show cause notice and hence requested for postponement of the personal hearing fixed on 26-12-2005. In spite of the same, the Commissioner passed the order on 28-12-2008 which was the subject matter of challenge in writ petition before Bombay High Court. It was in the above-mentioned set off facts that Bombay High Court held that there was a utter failure of the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to cause undue hardship to the appellants. The findings arrived at by the Commissioner regarding wrongful availment of Cenvat credit by the appellants during the relevant period having been based on detailed analysis of all the records and materials made available by the department, and as the records disclosed the documents pertaining to non-existing transport company, coupled with the fact that the appellant had already paid a sum of Rs. 50,30,033/- out of the total amount of wrongly availed Cenvat credit, all these factors taken together prima facie satisfy us to refrain from exercising our discretionary power for waiver of the requirement of pre-deposit and to insist for due compliance of the obligation regarding pre-deposit. 110.&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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