9911796707
TMI Blog1994 (9) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... OR No. 15/92 Duty not assessed finally 5, 00, 000 50,000 Total 64, 89, 719 14, 00, 000 1,30,000 Aggrieved by the demand raised against the appellant, 3 appeals were filed by it before the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench at Madras in which appeals the appellant made applications under Sec. 35F of the Central Excises and Salt Act, 1944 seeking waiver of pre-deposit of the duty demanded from it. These applications were considered by the Tribunal and by a common order dated 3-1-1994 it directed the appellant-company to make pre-deposit of duty and penalty by 31-3-1994 in each case to the extent given below : Order No. Date Duty to be pre-deposited Penalty to be pre-deposited OR No. 13/92, dt. 10-5-1993 Rs. 3,16,000/- (Rs. Three lakhs sixteen thousand) Rs. 2,00,000/- (Rs. Two lakhs) OR No. 14/91 dt. 10-5-1993 Rs. 30,00,000 (Rs. Thirty lakhs) Rs. 2,50,000/- (Rs. Two lakhs fifty thousand) OR No. 15/92 dt. 10-5-1993 Rs. 2,50,000/- (Rs. Two lakhs fifty thousand) 4.Recovery of the balance amount from the company and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that there was a prima facie mis-statement and suppression of facts on the part of the appellant and therefore concluded that the orders impugned in the appeals before it correctly took the value of the manuals as included in the value of diskettes as per the practice prevalent in trade. 9.While arriving at the said conclusions the Tribunal drew sustenance from the statements of Sri S.S. Ramakrishnan, Manager (Procurement) and N. Mohan, General Manager (Materials) of the appellant company, recorded on 1-3-1991 in which they have stated that whenever a shoftware package is purchased the items given are software programme in media, instruction manual/operating manual in book form, Sl. Nos., identification card, cuter hard board package, etc. They had further stated that all these items are given to anybody who purchases a software in one complete set. It was further stated that the practice of giving operating instructions manual was similar to the operating or instruction manual received along with items such as VCR, T.V., Refrigerator etc. 10.Having thus examined the issue prima facie, the Tribunal proceeded to consider the financial capacity of the appellant, and found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 40,16,000/- as pointed out earlier. In our opinion therefore, the omission on the part of the Tribunal to consider the question relating to limitation as urged before us by the learned counsel does not invalidate the order of the Tribunal nor was it necessary in our opinion for the Tribunal to have dealt with the said issue at the interim stage of granting or refusing the relief regarding pre-deposit. 13.Mr. Kumar then argued that the deposit of duty and penalty would cause extreme hardship to the appellant-company, which the Tribunal, according to him, has failed to take into consideration. It is no doubt true that the Tribunal is required to keep the question of hardship in view while deciding whether or not pre-deposit should be ordered, yet it is difficult for us to accept the submission of the learned counsel that a pre-deposit even to the extent of 50% of the total amount of duty and penalty should be treated to be causing any hardship to the appellant. This is particularly so when the Tribunal has prima facie come to the conclusion that the value of diskettes and manuals is liable to be clubbed together as the manuals were an essential part of software which could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t demanded. The order passed by the Tribunal declining to waive the pre-deposit, was in the light of these facts set aside by this Court. In the instant case, however, there is no such assertion made by the learned Counsel for the Appellant. All that has been contended is that the appellant has certain cash flow problems which averment does not suggest that the appellant is financially incapable of making the deposit in question. Problems of 'cash-flow' is a vague assertion and does not necessarily mean incapacity on the part of the Appellant to make the deposit in question. 18.In U.P. Lamination v. Union of India Others [1985 (20) E.L.T. 243] a Division Bench of the Allahabad High Court was dealing with a case where the Court found on a question of fact that if an interim order was not granted in favour of the petititioner the entire business which was being run on a small scale, would come to a standstill. Further, the Court held that if the averments made in the application seeking waiver of pre-deposit, were not controverted by an affidavit filed by the Department, the allegation of the appellant regarding his financial position and undue hardship should be deemed to be unr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie, that there has been misrepresentation and mis-statement of facts on the part of the appellant in having the manuals accompanying the diskettes assessed at a lower rate of duty. In arriving at the said conclusion the Tribunal has in our view, taken note of the relevant facts and since we do not find any perversity in that finding, we can safely say that the view taken by the Tribunal has not found a strong prima facie case in favour of the appellant. In view of what has been urged before us and what was contended before the Tribunal, all that could be said is that the appellant has made out an arguable case, in which event, in terms of the view taken by the learned single Judge, in the above case, the Tribunal was required to safeguard the interest of the Revenue also. While doing so, if the Tribunal has directed the deposit of 50% of the amount of duty and penalty demanded from the appellant, it has obviously taken care of the interests of the Revenue while simultaneously giving substantial relief to the appellant. 20.In R.K. Organisation v. CEGAT - 1993 (68) E.L.T. 560 (M.P.), a Division Bench of the Madhya Pradesh High Court disposed of a Misc. Writ Petition, even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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