Customs, Excise and Gold Tribunal - Calcutta
Chariot Cement Company, Rajesh Sharma ... vs Commissioner Of Central Excise And ... on 17 October, 2001
JUDGMENT S.S. Sekhon, J.
1. A show-cause notice was issued to the appellants consequent to stock challenge conducted when it was found that the despatches from the railway yard which is about 12 Km. away from their factory premises, certain despatches have been made by Railway Rakes and wagon loads especially to Dimapur. These quantifies appeared to be not covered by the clearance made to be railway yard from the factory premises.
2. Consequent to this findings proceedings were initiated and a show-cause notice was issued which was adjudicated and the duty demand of Rs. 90,44,735/- was determined on such movement of cement noticed from the railway yard which were not covered by the duty paying clearance of cement by the appellants. A penalty of similar amount under Section 11AC and penalty under Rule 209A was imposed on two employees.
3. We have heard both sides and considered the matter. We find that
(a) Since it is their own case that at Dimapur, they do not have any buyers, depots or other business establishment or removal prima-facie they do not have a good case. Therein defence that they do not have sufficient goods to remove in the full Rake allotted to them and, therefore, they have utilised the additional space available for the cement of their friends and associates who are manufacturers of cement or dealers in the vicinity. They had submitted the documents from such friends and associates to co-relate the concerned, quantifies so loaded in the Rakes. The appellants have further submitted that the Commissioner without considering these documents and or making any enquiries that the friends and associates as claimed cast the duty burden on them. We find that the material produced has to be given and examined in detail at the final hearing of the appeal
(b) We find that the appellants should be put to certain terms of deposit. On a question from the Bench, ld. Advocate for the appellants fairly conceded that the demands for the removal to Dimapur would be an amount of Rs. 54,00,000/- (approx.) or so. Since we are of the view that prima-facie case of the appellants in defence for such removals is not in their favour, we would order that a deposit of Rs. 30,00,000/- in the instant case would be sufficient to meet the requirement of Section 35F of the Central Excise Act, 1944.
4. This deposit of Rs. 30,00,000/- determined should be made within a period of twelve weeks and compliance reported by 18.01.2002 and on such compliance, the recovery of further amounts of duty and penalty imposed on the appellants and their employees would be stayed till the final hearing of the appeal.
5. We make it clear when the compliance is reported on 18.01.2002, the matter would be taken for final hearing on that date.
6. Ordered accordingly.
7. Dictated and pronounced in the open Court.