9911796707
TMI Blog2012 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... ested that these reflected the sales figures of the assessee. At the same time, the Commissioner was also alive to the fact that the production capacity of the Unit was 75 MT per month which would have worked out to maximum of 600 MT. In the eventuality, the duty liability would have been in the range of Rs. 74-75 Lakhs. Then there is absolutely no discussion on this aspect in the Order in Original. Though this appears to have been urged before the Tribunal, the latter did not give sufficient weightage to this aspect and appears to have adopted a rough and ready rule while directing pre-deposit of Rs. 6 Crores which it refused to alter when the rectification application was made. The Tribunal’s order does not reflect any discussion on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice was confirmed and among others, the demand for Rs. 8,30,53,761/- (Rs. Eight crore thirty lakh fifty three thousand seven hundred sixty one) of duty and penalty of the equal amount was imposed. The appellant carried the matter in appeal to the CESTAT (Tribunal for short) which by order dated 08.04.2011 directed payment of Rs. 6 Crores as pre-deposit amount. The appellant moved an application for rectification urging inter alia its extreme financial hardship and also contending that the impugned Order in Original itself reveal that production capacity was 5 MT per day and by no stretch of imagination, the duty is to be exceeded the sum of Rs. 73 Lakhs. The Tribunal, however, rejected the application for rectification without an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings, the Commissioner noticed that the assessee had purchased an excessive quantity of diesel oil (to the tune of an amount in excess to Rs. 89 Lakhs) which only meant that there was substantial production which was withheld from the assessment. 5. This Court has considered the submissions as well as the materials on record including the Order in Original and the impugned order. The Order in Original in this regard states as follows: - "I find that, M/s. Ashutosh Metal Industries (ATM) had a capacity to manufacture 50-75 MT per month, which would entail a production of 600 MT over the period from March 2005 to November 2005, such production required consumption of 60 K. Ltrs. of LDO. Considering these facts, I observe that M/s Ashu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a account generated from the pen drive; they do not prepare any kachhi parchi and the kachhi parchies recovered from Smt. Janki Sharma has got nothing to do with him; Smt. Janki Sharma never worked with Ashutosh Metal and he has never given her any kachhi parchi for data feeding, neither he has given any pen drive. He has further stated that he did not agree that he has given directions to prepare Kachhi parchi to R.S. Aggarwal or Shri Manish Sethi. He thus disowned the documents and contents in the documents the made up file and printouts), being in any way related to M/s Ashutosh Metal Industries or him." 6. The Commissioner was considerably influenced by the fact that Ms. Janki Sharma was concededly an employee of the appellant and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this aspect and appears to have adopted a rough and ready rule while directing pre-deposit of Rs. 6 Crores which it refused to alter when the rectification application was made. This Court has also considered the rectification application which specifically states in paragraph-5.1 as follows: - "5.1 Applicant further submits that during the course of arguments, through an oversight, pleading on financial hardship likely to be caused by predeposit could not be made, although this pleading was taken in the said stay application, as follows: - "7. Appellant also pleads financial hardship." 8. The Tribunal's order does not reflect any discussion on the relative hardship which would be visited upon the appellant in the light the latter is con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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