Customs, Excise and Gold Tribunal - Mumbai
Hi-Tech Electronics, Lalit Products, ... vs Commissioner Of Central Excise Mumbai V on 9 April, 2001
Equivalent citations: 2001(77)ECC91
ORDER
Gowri Shankar, Member (Technical)
1. The applications are for waiver of deposit of duty of Rs. 13.11 lakhs approx. from Lalit Products, and penalty of Rs. 18.10 lakhs under rule 9 to 52A and 11AC; and penalties of Rs. 5 lakhs each on remaining nine applicants.
2. We have heard the counsel present and the departmental representative. We have considered the written submissions filed on behalf of others.
3. The duty has been demanded and penalties imposed on the finding of the Commissioner that Lalit Product cleared mixers and electrical extension rods without payment of duty. The Commissioner records that while the value of clearance from 1997 to 1998 recorded in its books was Rs. 30 lakhs, the statements of transporters who carried the goods from it factory and consignees of the goods show that the value of goods cleared was Rs. 73 lakhs. The contention on behalf of Lalit Products in its written submission appear to be that even accepting the fact of such clearances, duty is not payable the benefit of notification 1/93 will be available. There is no serious attempt in the submission to dispute the fact of clearance. The Commissioner has already excluded the availability of notification 1/93 to say that brand name "Celonex" which was used by this applicant was registered with the trade mark registry as belonging to N.M. Metals. The contention in the written submission is that the re has in fact been a request to the trade mark authorities to assign it to Lalit Products. No copy of application of the registry or the assignment deed has been produced. We are prima facie unable to accept this contention. On the facts before us, we find that Lalit Product does not have a prima facie case on merits. Financial hardship is not pleaded. In these circumstances, we find it appropriate to ask Lalit Product to deposit the entire duty within two months form the receipt of this order. Thereupon we waive deposit of the remaining amounts of duty and penalty and stay their recovery.
4. The applicants except Beekay Industries and Vinay Electronics are dealers of the product of the mixers and extension point manufactured by Lalit Product. Penalty has been imposed on all of them on the ground that since they received these goods without invoice by Lalit Product, they would have been aware that goods were cleared without payment of duty. The contention on behalf of Beekay Industries and Vinay Electronics is that they had in fact no received any gods manufactured by Lalit Product to whom they had sent raw material for job work. The departmental representative is unable to rebut this contention. We therefore waive deposit of the penalties imposed on them, and stay their recovery. With regard to the others, it is contended that they had in fact produced invoices. The counsel for Hi-Tech Electronics contends that the main reason for imposing penalty on them is statement of Sanjay Agarwal, the proprietor of a transporter, Moongipa Roadways stating that it delivered to this dealer goods which were consigned to various others. He questions the correctness of this statement.
5. The Commissioner has noted the request made for cross examination of Sanjay Agarwal, but has not been permitted it in the light of the fact that Agarwal did not retract from the statement. If the statement of the transporter was at variance with the transport documents, as in claimed, and he does not offer any explanation for this variation, we are of the prima facie view that cross-examination should not have been denied. Questions of jurisdiction also arise. All except two of the dealers were situated outside the jurisdiction of the Commissioner. Whether penalty can be imposed on these persons by her is debatable. No doubt, the Commissioner was competent to confiscate the goods for the reason that the factory from which they were manufactured and cleared was in her jurisdiction, but penalty is different matter. Taking into account, the uncertain facts and the law with regard to the dealer, we waive deposit of the penalties imposed on them, and stay their recovery.
6. Compliance on 19.6.2001.