Customs, Excise and Gold Tribunal - Mumbai
Mardia Chemicals Ltd. vs Commissioner Of Customs & Central ... on 24 July, 2003
Equivalent citations: 2003(160)ELT1080(TRI-MUMBAI)
JUDGMENT Archana Wadhwa, Member (J)
1. The prayer in the present stay application was to dispense with the condition of pre-deposit of duty amounting to Rs. 83,72,919/- and personal penalty of Rs. 20 lakhs.
2. Arguing on the stay petition, Shri V.S. Nankani, learned Advocate, submits that view the impugned order passed by the Commissioner in de novo proceedings, modvat credit has been disallowed to them on the ground that they were not entitled to the benefit in respect of the Customs duty free import of inputs under erstwhile Notification No. 203/92-Cus dated 19.5.1992 and under Notification No. 204/92-Cus dated 20.5.1992 inasmuch as one of the relevant conditions for VABAL scheme was that the importer could not avail benefit of modvat credit of CVD paid on the imported inputs. He submits that the Tribunal had earlier remanded the matter to the Commissioner vide its order No. 2129-30/WZB/1998 dated 23.9.1998, after considering the appellants' contention that they have all the relevant documentary evidence to show that the imports were made under quantity based advance licence and with directions to the Commissioner to look into the said aspect. During the de novo adjudication, the appellant could not produce the documentary evidence before the Commissioner. They, however, took a different plea that in the case of the assessee availing modvat credit, the Revenue could disallow them the benefit of the Customs notification instead of directing them to reverse the modvat credit. The Commissioner has not accepted he above plea and has remanded the matter.
3. It is the contention of the learned Advocate that there are Tribunal's decisions to the effect that when one of the conditions of the notification did not stand fulfilled, the Customs authorities could deny them the benefit of the notification but could not direct them to reverse the modvat credit so taken. He submits that in view of the above decision, they have a good prima facie case on merits and as such prays for dispensation with the condition of pre-deposit of duty and penalty.
4. Arguing on behalf of the Revenue, learned DR strongly objects and submits that the impugned order has been passed in de novo proceedings, when the matter was earlier remanded with directions to look into the appellants' documentary evidence in support of their plea that the imports have taken place under QABAL. He submits that the scope of remanding the proceedings was limited and the appellant was not entitled to take a new ground at all, when the same was not taken either in the original adjudication proceedings or at the time of hearing of the appeal before the Tribunal.
5. We have considered the submissions made by both the sides. We find that the Tribunal by its earlier order had considered the appellants' contention that they were in a position to show that the exemption availed of on the imported goods as replenishment was under notification 204/92 and not under notification 203/92. By observing that the appellant was in a position to demonstrate before the Commissioner the above fact, the appeal was allowed by way of remand. Paragraph 4 of the said order read that - "The Commissioner shall after giving the appellant two months time from the receipt of this order to produce the evidence indicated above, adjudicate on the notice according to law." Admittedly the appellants have not been able to produce the evidence in support of their contention as raised before the Tribunal. Instead they have gone on an altogether different plea. The DR's contention that the Tribunal's order was limited in scope and the Commissioner was not empowered to go beyond the same seems to have prima facie force. Whether the appellant was entitled to take new different grounds in remand proceedings is an arguable issue and requires detailed consideration. Suffice it to say that the appellant has not been able to make out a prima facie case in their favour inasmuch as they have not been able to fulfil the requirement of the remand order. Accordingly we are of the view that the appellant should be put to some condition of pre-deposit.
6. The appellants have also contended financial hardship. We have perused the annual for they year 2001-2002 produced on record by the appellant and find that the appellant had sufficient cash and bank balance as on 31.3.2002 and it cannot be said that they would be at financial difficulties in depositing a part amount of duty. We also note that they have claimed depreciation to the extent of Rs. 4158.24 lakhs. As such, taking all the above factors into consideration, we direct the appellant to deposit Rs. 30 lakhs within a period of two months from today and report compliance on 26.9.2003. Subject to deposit of the amount of duty, we dispense with the condition of deposit of balance amount of duty and entire amount of penalty and stay the recovery thereof.