9911796707
TMI Blog1999 (9) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 of the petitioner and also seized stock of raw materials and packing materials on the ground that the same were not recorded in the books and the finished goods were over and above the recorded balance. Some incriminating loose papers and a diary were also seized. A show cause notice was served by the Commissioner of Central Excise, Kanpur for explaining as to why Central Excise duty amounting to Rs. 1,42,84,207/- and Rs. 19,60,247/- respectively be not levied under Rule 9(2) of the Central Excise Rules read with Section 11A(1) of the Central Excise Act. Notices for seizer of the goods over and above recorded balance and further excise duty for goods found loaded in the vehicle was also served. The petitioner submited suitable replie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that goods valued at Rs. 25,26,172/- are lying in custody of the department which itself were sufficient to secure the interest of revenue. These grounds have not been considered by the Tribunal while passing the impugned order. 6.Shri S.P. Kesarvani, learned Counsel for the respondents, however, submits that total demand raised against the petitioner is worth more than Rs. 44 lacs and considering the goods in custody of the department only Rs. 11,50,000/- were directed to be deposited and for rest of the amount waiver/stay was granted by the Tribunal. It is further submitted that it was a case of wilful suppression of facts, or contravention of the provisions of the Act. In view of the proviso to Section 11A the limitation would be 5 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise", and "six months", the words "five years" were substituted. Explanation. - Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be. 35F : Deposit pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmally under Section 35F undue hardship whether financial or otherwise, is the sole consideration on which the appellate authority passes an order for waiving the pre-condition of deposit or part waiver of such condition and for stay of demand or part of it made by the Commissioner. In the instant case no facts are alleged or pointed out causing resultant and undue hardship to the petitioners. Therefore, it cannot be said that the order passed by the Tribunal was in any manner illegal or improper. 10.It is true that the question of limitation has not been considered by the Tribunal while passing the impugned order dated 21st December, 1998. Normally that question related to the merits of the case. However, in those cases where the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n plea of bar of limitation is taken in the appeal that should be considered while disposing of application under Section 35F of the Act. However, in the instant case on the facts of the present case, in my view non-consideration of the bar of limitation at initial stage would not make the order as illegal or improper. It cannot be said that the authority has failed to exercise the jurisdiction vested in it by law or has exercised it illegally. Therefore, the order passed cannot be interfered with on this ground. 12.The other ground pressed by Shri Mathur is that goods worth more than Rs. 25 lacs are in custody of the department which is sufficient to secure the interests of the revenue. As rightly pointed out by Shri Kesarvani, the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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