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TMI Blog2010 (5) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... . We have also perused the records along with applications filed by the appellants pursuant to the order passed by Hon'ble Delhi High Court permitting the appellants to file such applications for re-consideration of the matter. 2. It is the case of the appellants that the application for stay filed by the appellants in relation to the impugned order dated 25th July, 2008 passed by the Commissioner, Central Excise, Rohtak was disposed of by this Tribunal on 13th July, 2009 without considering some of the grounds which go to the root of the matter while ordering the deposit of the entire duty demanded under the said order, and therefore, there is case for reconsideration of the matter. 3. By order dated 13th July, 2009 this Tribunal had disposed of the applications for stay filed in the above appeals rejecting the prayer for waiver of pre-deposit in relation to the duty demanded under the impugned order, though the amount in relation to the interest and penalty was waived. 4. The total duty demanded under the impugned order is Rs. 6,20,62,878/- against appellants M/s. Surya Boards Ltd., Rs. 2,16,14,572/- against M/s. Surya Vikas Plywood Pvt. Ltd., Rs. 42,42,43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earances, based on which, no conclusion could have been drawn in favour of the revenue regarding the allegation in respect of other alleged clearances. (g) The entire case of the department being based on the alleged co-relation between the data retrieved from the laptop and the statements of the distributors as well as other documents including ledger books it was absolutely necessary for the adjudicating authority to afford opportunity to the appellants to cross-examine the witnesses and particularly who had prepared the report regarding such co-relation. 7. On the other hand it is the case of the department that the Tribunal while disposing of the stay applications had considered all the relevant issues and has come to a correct finding which do not require re-consideration in any manner. As regards the financial hardship is concerned, though the same might not have been dealt with in detail in the earlier order, yet the analysis of materials record in the order dated 13th July, 2009 disclose that the said aspect was clearly taken note of by the Tribunal while ordering the deposit of the duty demand under the impugned order while waving the interest and penalty amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent findings as the consideration thereof would convince the Tribunal to waive the entire demand under the impugned order. 11. The perusal of the applications for stay filed in the matters which were disposed of by order dated 13th July, 2009 along with memo of appeals undoubtedly disclose various grounds raised in the matter and the same include the grounds enumerated herein above and which are sought to be contended to have been overlooked while deciding the matter on 13th July, 2009. The fact that those grounds were raised earlier has not been seriously disputed by the respondents. 12. Coupled with above factors, it cannot be disputed that the issue relating to the financial hardship was not dealt with elaborately, nor consideration thereof was stated in so many words in the order while disposing the matter on 13th July, 2009. Indeed, there was no reference to the said aspect of the matter. 13. We are aware that we are dealing with an application for re-consideration of the matter. However, in view of the orders passed by the Hon'ble High Court of Delhi including the order dated 15-9-2009 in WP(C) No. 11687/2009 giving liberty to the appellants to raise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct of the appellants charged after 2005 is crucial aspect which was required to be considered as barring minor escalation on account of escalation in the cost of raw materials, the same was on par with the price charged for similar product by other manufacturers. Besides, there was no evidence whatsoever in relation to the allegation of collection of cash and utilization of such cash for purchase of the raw material. All those allegations were totally baseless and without any proof. This aspect having not been considered, other materials which have been undisputedly considered without taking note of the effect of these grounds, the same has resulted in great prejudice to the appellants. 18. Indeed, as regards the similarity in price in relation to the product manufactured by the appellants during the relevant period with that of similar type of the products manufactured by other manufacturers during the relevant time, there is absolutely no material to find any difference as such. At least the respondents have not been able to point out any such material. Obviously, there appears that there was no attempt to investigate in this regard. Similar is the case in relation to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on record supports the case of the department in relation to small percentage of clearances, that by itself would not be sufficient to jump to the conclusion in relation to all above clearances alleged by the department. There has to be cogent evidence to support such allegation. 21. As already observed above the materials on record do not disclose the department having taken into consideration the pricing factor of similar goods either for the relevant period or even after 2005 to ascertain whether the invoices issued by the appellants could be said to be under priced or there has been under-invoicing as sought to be alleged by the department. Equally as regards the collection of the cash and utilization thereof for purchase of raw material, the conclusion in that regard has been arrived at based on circumstantial evidence and not on the basis of any direct evidence in that regard. The circumstantial evidence comprises of data retrieved from lap top and the statements of some of the traders. At the same time the adjudicating authority has totally discarded statements of various other traders without disclosing any justification for the same. As regards the data, undoub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 -118.39 1153.88 133.99 295.00 625.64 23.It is also the contention of the appellants that there was no reserve with the appellant company as on 31-3-2009 and this is evident from the balance sheet and, therefore, order for deposit of the amount demand under the impugned order would result in closer of the business of the company and mass scale unemployment. The facts brought on record in this regard are not seriously disputed by the department. Obviously, the same discloses case of financial hardship to the appellants in case of insistence for deposit of the entire duty amount. 24.Taking into consideration overall materials on record, and the fact that the allegation of under-invoicing is essentially based on data retrieved from the lap top and some of the statements of witnesses coupled with some documentary evidences in relation to small percentage of clearances, and such evidence being not allowed to be tested by way of cross-examination in our considered opinion, the appellants have been able to make out prima facie case for grant of stay of the impugned order and total waiver of the amount demanded under the impugned order till the disposal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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