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TMI Blog2010 (9) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie given adequate opportunity to the appellants to defend themselves which they have not availed of - Hence, direct the appellant, to predeposit 50% of the duty amount - predeposit of the balance amount of duty as well as penalty imposed on the appellant shall remain waived. - E/69/2008 - M-275/KOL/2008 - Dated:- 23-9-2010 - Dr. Chittaranjan Satapathy, Shri D.N. Panda, JJ. REPRESENTED BY : Shri V.N. Dwivedi, Advocate, for the Appellant. Shri K.P. Singh, SDR, for the Respondent. [Order per : Chittaranjan Satapathy, Member (T)]. - Heard both sides. The present miscellaneous application has been filed by the appellants for modification of the stay order dated 7-7-08. We find that on 16-6-08, the matter was adjourn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24-7-07/25-7-07 and 8-10-07/9-10-07/10-10-07. It is contended on behalf of the appellants that they did not have adequate time between the date of supply of the documents on 31-8-07 and the next date of hearing fixed on 8-10-07/9-10-07/10-10-07 to represent their case before the adjudicating Commissioner. They further state that on 10-10-07, they wrote a letter to the adjudicating Commissioner asking for further adjournment on the ground that the Aunt (Father s brother s wife) of one of the Directors of the appellant Company had expired on 26-9-07. 4. The ld. Advocate states that the appellants have since received the copies of the documents, not supplied earlier by the Department, on 5-7-08 pursuant to the Tribunal s direction. He, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amco Chemicals Pvt. Ltd. v. M/s. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. and Another - AIR 1987 Supreme Court 1564. 7. We find that as per Section 35F of the Central Excise Act, 1944, an appellant before the Tribunal is required to predeposit the entire amount of duty demanded and the penalty imposed on him before the appeal itself can be considered. Proviso to the said Section 35F permits the Tribunal to dispense with such deposit subject to such condition so as to safeguard the interest of revenue if it is of the opinion that deposit of duty demanded or penalty levied would cause undue hardship. In this case, the only argument advanced by the ld. Advocate for the appellants for waiver of the predeposit is that the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling money credit which is as good as cash, the same can be used for paying duty on the finished goods and even refund of the same in cash is allowed if the finished goods are exported. It is the primary duty of a manufacturer to satisfy the Department that he has indeed earned the credit obtaining duty paid inputs and he has utilized the same in the manufacture of finished goods. The burden of proof in respect of eligibility to input duty credit is squarely on the appellants. 9. In this particular case, we find that prima facie, the Department has issued a show-cause notice to the appellants. The appellants did not demonstrate either before the adjudicating Commissioner or before us that they are indeed entitled to the duty credit. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h huge amount of credit from the public exchequer. We further find that even afterwards, on none of the three dates fixed for personal hearing, the appellants took any steps to appear before the adjudicating Commissioner and even on the last date of hearing fixed on 10-10-07, the appellants did not appear before the adjudicating Commissioner but merely sent a letter that day seeking further adjournment on the ground that the Director s aunt had expired 15 days earlier on 26-9-07. We are of the prima-facie view that the conduct of the appellants does not demonstrate that they were keen to defend themselves in the proceeding or to produce any evidence in support of their being eligible to the alleged inadmissible credit of over Rs. 75 lakhs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be put to some condition of predeposit and the matter should be heard further in detail subject to predeposit being made. We find that the appellants have not taken any steps to demonstrate either before the lower authorities or before us that they are entitled to the allegedly inadmissible Cenvat credit amounting to over Rs. 75 lakhs; the appellants have not made use of the time available to them including one month time available after supply of the documents to put forward any defence before the adjudicating authority; they also did not appear before the adjudicating authority on any of the last three dates i.e. 8th, 9th 10th October, 2007 either to plead their case or to argue for adjournment with sufficient reason, but merely sent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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