Customs, Excise and Gold Tribunal - Mumbai
Kolety Gum Industries vs Commissioner Of Cen. Excise on 10 November, 2003
ORDER Jyoti Balasundaram, Member (J)
1. The application for waiver of pre-deposit of duty of Rs. 1,08,92,557/- and penalty of equal amount arises out of the order of the Commissioner of Central Excise, Valsad. The duty demand has been confirmed as a result of holding that Guar Gum and Guar Dal Flour are manufactured by the applicants and fall for classification under CET subheading 1301.10 as the applicants used power in the process.
2. We have heard Shri Hidayatullah, ld.Sr.Counsel for the applicants and Shri Hemant Kotikar, ld.SDR for the respondent. At the outset, we note that the applicants' claim for classification under Chapter 11 was the subject matter of the earlier stay order on a similar product, as seen from Order No. CI/2143-2144/WZB/2003 dated 24/9/03 in the case of Kraps Chem Pvt.Ltd. and other, wherein it was held that, prima facie, a case on merits of classification has not been made out and the Bench proceeded to hear and decide on the plea of limitation. Arguing that the entire demand before us is time barred, the Sr.Counsel draws our attention to the statement of the proprietor of the company Shri Harshad S.Sheth, in which he has submitted that no declaration before the Central Excise Department was filed because it was not accepted by the Excise Department as the product was not dutiable falling under Chapter 11. He submits that there is nothing in the order of the Commissioner to rebut or controvert the statement of the proprietor and in these circumstances, it cannot be said that the facts have been suppressed so as to invoke the extended period of limitation. In response, the Id.SDR points out the finding of the Commissioner that there is nothing on record i.e. any documentary evidence in support of the deposition.
3. We have carefully considered the rival submissions. Prima facie case for waiver on merits has not been made out. Coming to the issue of limitation, we hold that a strong prima facie case has not been made out in view of the finding of the Commissioner at internal page 11 of the impugned order. Since no prima facie case has been made out for total waiver and having regard to the totality of the facts and circumstances, we direct the applicants to deposit a sum of Rs. 25 lakhs (Rupees Twenty five lakhs) towards duly within a period of eight weeks from today. On such deposit, pre-deposit of balance duty and the entire penalty shall stand waived and recovery thereof stayed, pending the appeal. Failure to comply with such direction shall result in vacation of stay and dismissal of appeal without prior notice.
4. Compliance to be reported on 28.1.04.
(Dictated in Court)