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TMI Blog2012 (12) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. It stands observed by Hon'ble High Court that the petitioner's property has been attached vide communication dated 12.8.10 and that he is not possessed of any means to make cash deposit, Hon'ble High Court observed that no such argument was raised before the Tribunal and as such they granted liberty to the petitioner to make an appropriate application before the Tribunal. 2. In terms of the above direction of Hon'ble High Court, the present modification application stands moved by the applicant/appellant. 3. The matter had earlier come up on record, when the learned SDR appearing for the Revenue was directed to seek comments by the appropriate authority. On matter being called today, learned SDR produces a letter of Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -deposit of Rs.6 crores , in addition to view of retention of the property. 6. After appreciating the submissions made by both sides, we find that the fact of attachment of the property by the Revenue was not brought to the notice of the Bench at the time of disposal of the stay petition on 27.9.11. As such, the direction of the Tribunal to deposit an amount of Rs.6 crores is without considering the fact of attachment. In such scenario, we find no merits in the department's request for continuance of attachment and directed the appellant to deposit an amount of Rs.6 crores . It has to be kept in mind that the Revenue has not filed any modification application seeking modification of stay order. The stay order directed the appellant to depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995 (hereinafter referred to as "the said Rules") and the stay order issued by the Tribunal under section 35F of the Central Excise Act. Further if such a conflict is there, I am of the view that Tribunal should resolve it only to the extent necessary and should not pass any order which may help the assesse to vanish without payment of any dues at all. So I am recording this separate order. 8. The facts of the case are already stated in the order recorded by Member (Judicial). So I propose to add only some few more facts. This is a case of duty evasion during April 2002 to July 06 adjudicated in' Dec 2008. The case is that the Applicants have caused revenue loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the properties. The prayer is only that the case should be heard without any cash deposit. A similar situation was considered by the Hon High Court of Andhra Pradesh in the case of Sri Chaitanya Educational Committee-2011 (22) S.T.R. 135 (A.P.) , which decision was later upheld by the Hon Apex Court though with a lower amount of pre-deposit. Since there is concurrence of opinion that attached properties are not sufficient compliance with section 35F of the Central Excise Act, I do not want to expand on this issue. 12. There is an oral prayer that the attachment may be lifted so that the applicants can raise funds. But there was no undertaking during hearing that if attachment is lifted Rs. Six crores will be deposited. Such ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which reads as under: "Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." 15. Since the applicants state they have no other assets it is very obvious that the amounts due to the government are at serious risk. So there is every reason to exercise the discretion very carefully and impose suitable conditions. 16. It appears that the power to issue this notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue should be allowed to complete the process of attachment and its sale to realize Rs. 6 crores . 18. At this stage I would like to bring to the notice of Revenue the fact that if they are relying on the powers under section 11DDA, the notice issued by them cannot have a life beyond two and a half years that is beyond 11-02-2013, that too if proper extensions have been taken from the Chief Commissioner, in view of the provisions in section 11DDA of Central Excise Act. The question whether the powers under section 12 of Central Excise Act read with section 142 of the Customs Act is available independent of section 11DDA may be examined by Revenue. The very process of sorting out difference of opinion between the two Members, regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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