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TMI Blog2010 (8) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 in relation to such expansion programme - Obviously it was for the appellants to disclose that if they were interested to claim the benefit for which they had to satisfy that they had complied with the requirements of the conditions prescribed under the notification - Rejection of benefit found to be correct. Financial hardship - the appellants in the applications for stay have stated that due to fire in the factory on 15-11-2007, the appellants were unable to pay term loan instalment and interest and therefore the bankers had re-scheduled the payment of term loan for the period December, 2008 to December, 2010 - Even the chart discloses fall in the production percentage though the actual production shows constant increase year by year - The re-scheduling of the term loan was for the purpose of payment from 31st March, 2010 - They are already in August, 2010 - Financial hardship is to be considered as on the date of consideration of the matter - Hence, no case has been made out for total waiver of the entire amount demanded under the impugned order. - E/712-713/2010 - 1001-1002/2010-EX(PB) - Dated:- 30-8-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng so and the said plan was revived only after increasing the capacity, after obtaining financial assistance, and the expansion plan was carried out. He also submitted that during the financial year 2007-08 and 2008-09 due to fire in the factory, the appellants had suffered irreparable loss and that has affected the financial position in the clearing of the loan amount of the appellants and even the bankers have re-scheduled the payment of term loan from December, 2008 onwards. Taking into consideration the financial hardship as also failure on the part of the Commissioner to take note of the relevant materials on records, the learned advocate for the appellants submitted that they have made out a prima facie case for stay of the impugned order without insisting for any pre-deposit. 4. The DR, on the other hand, submitted that the documentary evidence placed on records clearly discloses that the expansion programme had commenced much prior to 7th January, 2010. In this regard, the attention was sought to be drawn to the letter dated 18-1-2003 by the appellants addressed to the Deputy General Manager of U.P. Financial Corporation, alongwith the certificate of chartered engineer wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the appellant that expansion programme had commenced on or after 7th January, 2003 and therefore there is no case made out for grant of stay in the impugned order. 5. It cannot be disputed that narration of the facts, which relates to the case put forth by the department, has been recorded in the same manner as the same were placed before the adjudicating authority. The said narration may perhaps appear to be a finding by the adjudicating authority. But one must not forget that the order has not been written by any trained judicial officer. Overall reading of the order of the Commissioner, it would disclose that the Commissioner s findings are recorded after recording the submissions made on behalf of the department followed by the defence taken by the appellants. Merely because the order has not been recorded in the manner that the appellants would desire it to be, it would not be appropriate to conclude that the Commissioner had proceeded to decide the matter with preconceived mind. The order has to be read alongwith materials those were placed before the concerned authorities. 6. The notification in question provides that exemption in terms thereof could be availed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions the undersigned had with you over telephone, we are giving the details of interest and instalments paid to financial institution during last two financial years : Name of the Institution Principal 2000-01 Interest paid 2000-01 Principal 2001-02 Interest paid 2001-02 Principal paid 2002-03 Upto 31-12-2002 Interest Paid During Current Year upto 31-12-02 Amount Rs. Lacs Amount Rs. Lacs Amount Rs. Lacs Amount Rs.Lacs Amount Rs. Lacs Amount Rs. Lacs IDBI 37.50 94.23 NIL 96.25 22.50 137.62 PICU NIL 19.47 NIL 18.30 22.50 18.73 UPFC 21.42 45.67 7.50 37.91 63.25 29.51 TOTAL 58.92 159.27 7.50 152.55 108.25 185.86 During the financial year 2000-2001 and 2001-2002, there was stiff competition in the market. The paper industry was not in good shape. Moreover the old D.G. Sets which were failed during the year 1998-1999 were replaced partially during the year 1999-2000 and the balan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which apparently disproved the claim of the appellants of having procured such machines from the said firm after 7th January, 2003. Even invoice in relation to one of the products which stated to be procured in relation to expansion programme of the appellants is dated 23-7-2002. If the expansion programme had commenced on or after January, 2003, how and why the product in that regard could have been procured in July, 2002 in relation to such expansion programme. 13. Taking into consideration the above materials, the finding arrived at by the adjudicating authority for fixing duty liability of the appellant cannot be found fault with. Needless to say all these observations are prima facie observations for the purpose of deciding the stay applications. 14. As regards financial hardship, the appellants in the applications for stay have stated that due to fire in the factory on 15-11-2007, the appellants were unable to pay term loan instalment and interest and therefore the bankers had re-scheduled the payment of term loan for the period December, 2008 to December, 2010. Undoubtedly, even the chart discloses fall in the production percentage though the actual production shows c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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