9911796707
TMI Blog2012 (1) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2011 was passed on an application for modification/rectification. It is stated that as the rectification application was pending consideration before the Tribunal, there has been delay in preferring the present appeal. 2. Mr. Satish Kumar, Advocate who appears for the Central Excise has been heard on this application for condonation of delay. He waives right to file reply. 3. Considering the facts and the reasons given, we allow the present application and the delay in filing the appeal is condoned. 4. Application is disposed of. CEAC 1/2012 1. A limited issue arises for consideration and therefore we have heard the counsel for the appellant and the respondent. The following substantial question of law is framed:- "Whether the Customs, E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant herein filed a detailed reply to the show cause notice raising several contentions. It was submitted that the so-called exercise copy found during the search was a production diary and did not reflect sales of additional production which was removed clandestinely. The exercise book contained details of production which were also duly recorded in the books of account maintained on regular basis. With regard to the first allegation it was submitted that the two partnership firms are independent entities, manufacturing different products and clubbing of production of the two separate entities was not permissible without financial flow back or common administration. Mere relationship of the partners of the two firms, cannot be a ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellant has taken us to the order passed by the Commissioner and has pointed out that the figures and computation of alleged clandestine sales and the findings with regard to common administrative control and financial flow back. It is highlighted that the findings are not correct. He submits that the law does not bar or prohibit a wife of a partner setting up and doing partnership business. He states that the decisions in the case of Poly Printer vs. C.C.E., Delhi I, 2002 (139) ELT 295 and Kiran Biscuits and Foods Ltd. vs. C.C.E., Hyderabad, 2005 (179) ELT 566 have been referred to in the impugned order but the ratio and impact has not been properly appreciated. With regard to the trade names under which goods were sold, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per search report/panchnama total inventory was valued at about Rs.4 lakhs in the case of appellant-Himgiri Plastics and Rs.9 lakhs in the case of Himalayan Polycolours. He further submits that as per the show cause notice, Himgiri Plastics was operating from the premises which was taken on rent of Rs.8,000/- per month. He submits that the figures with regard to clandestine sales mentioned by the Commissioner are exorbitant and are not realistic. 9. During the course of hearing it was put to the counsel for the appellant whether the appellant or their partners have immovable property and they are ready and willing to furnish surety or create a charge so that recovery can be made in case the demand is accepted and the appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame time, interest of Revenue has to be protected and some payment must be made. 13. Keeping in view the aforesaid factors, we are inclined to modify the directions of the tribunal and direct as under:- 1. The appellant will pay a sum of Rs.40 lakhs to the respondent as per the following schedule:- (i) Rs.10 lakhs will be paid on or before 10.2.2012; (ii) Thereafter, the appellant will deposit a sum of Rs. 5 lakhs every two months. The first deposit will be made on or before 16.4.2012. We have fixed the aforesaid schedule as we are informed that the present appeal will be taken up for hearing only after three years. (iii) The appellant will deposit the papers/title documents of the property bearing No.364-A, Hastas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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