9911796707
TMI Blog2008 (7) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The petitioner company is a registered export oriented unit and is engaged in the manufacture of Dyed Polyester Filament Yarn. Pursuant to search carried out by the officers of the respondents, show cause notice came to be issued by the respondent No. 2 invoking larger period of limitation and seeking to recover Central Excise duty of Rs. 91,99,802/- under section 11(A)(1) of the Central Excise Act, 1944 (the Act) as also the interest and penalty thereon. The respondent No. 2 confirmed the demand of Rs. 91,99,802/- under section 11(A)(2) of the Act and imposed penalty of equal amount with applicable rate of interest. Being aggrieved, the petitioner filed an appeal under section 35B of the Act along with an application under section 35F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssal of the appeal without further notice to the applicant. 6. As regards the penalties on other applicants, we waive pre-deposit of the same and grant stay of recovery of the same." 3. The learned Counsel for the petitioner has submitted that the petitioner had specifically contended in the memo of the stay application that the petitioner unit has been declared a "sick industrial undertaking" by the Board of Industrial and Financial Reconstruction (BIFR) and that the company has an accumulated loss of more than Rs. 16 crores and in support of the said contention had also produced Chartered Accountant's certificate as well as the relevant balance sheet for the years ending 31-3-2005 and 31-3-2006. The petitioner company had also relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions are "undue hardship to such person" and "safeguard the interest of revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view." 6. The Tribunal in its impugned order has recorded the submission of the petitioner that their company had been declared a sick industrial undertaking by the BIFR and has accumulated losses of over Rs. 16 crores. After considering the submissions and the grounds of appeal, the Tribunal has held that the department has a strong prima facie case against the petitioner. The Tribunal has observed that in a prima facie case of clandestine removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, on the ground that specific averments were made in the application for waiver and that the balance sheet for the relevant period had also been annexed, in effect and substance, the controversy involved in both the petitions is the same. In the circumstances, the present case is squarely covered by the said decision. 8. For the foregoing reasons as well as for the reasons stated in the judgement and order of even date rendered in Special Civil Application No. 2968 of 2008, it cannot be stated that there is any infirmity in the order of the Tribunal so as to warrant any intervention by this Court. The petition, therefore, does not merit acceptance and is, accordingly, rejected. 9. The petitioner is granted four weeks from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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