Customs, Excise and Gold Tribunal - Delhi
Shakti Engg. Works vs Commissioner Of C. Ex. on 16 November, 2000
Equivalent citations: 2001(127)ELT476(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. These are five applications for waiver of pre-deposit of amount of duty of excise confirmed and penalty imposed as under: -
A. Appeal Nos. EI1423,1617, and 1431/2000-B Name Amount
(i) M/s. Shakti Engineering Works Rs. 1 lakh -
(Penalty)
(ii) M/s. Simplex Expeller Works Rs. 1 lakh -
(Penalty) Rs. 5,45,054/-
(Duty)
(iii) M/s. Super Engg. Works Rs. 1 Lakh
(Penalty)
B. Appeal Nos. E/1893-94/2000-B
Name Amount
(i) M/s. Shakti Engineering Works Rs. 50,000/-
(Penalty)
(ii) M/s. Super Engg. Works Rs. 50,000/-
(Penalty)
2. Shri A.R. Madhav Rao, learned Advocate, mentioned that the Adjudicating Authority, under Order No. 64-66/98 dated 9-9-98, has held that the three applicants have connived with each other to avail the exemption under Notification No. 16/97 dated 1-4-97; that the machinery required for manufacture of expeller and its part was installed in the premises of M/s. Super Engg. Works, Applicant No. 3, and there was neither sufficient machinery nor proper power connection in the premises of other two applicants; that one Desh Raj, his four sons and their wives were partners in three firms operating from one premises and common office; that the manufacturing activities were jointly undertaken by the three applicants and accordingly their clearances have to be tlubbed together; that the Commissioner (Appeals), under impugned Order No. 54-56/CE/CHD/2000 dated 28-1-2000, has rejected their appeals. He, further, mentioned that the Adjudicating Authority, under Adjudication Order No. 67/98 dated 24-9-98, confiscated the seized goods with an option to redeem the goods on payment of fine of Rs. 1,60,000/- and imposed penalty of Rs. 50,000/- each on the three Applicants; that Commissioner (Appeals) has confirmed the Adjudication Order under impugned Order No. 374-75/CE/CHD/2000 dated 22-2-2000.
3. The learned Advocate submitted that all the three applicants are independent units, engaged in the manufacture of expeller machine and parts thereof, having separate partners, premises and manufacturing facility, holding SSI Certificate and Registration under Registrar of Firms; that there is no flow back of funds among the Applicants; that the goods are cleared separately and directly by each to their own customers; that each of them had produced purchase invoices pertaining to the availability of sufficient machinery; that at the time of visit of the officers, the machines had been sent for maintenance due to off-season and as such clubbing of the clearance by the three applicants is incorrect. He finally submitted that out of the duty demanded, the Applicant has already deposited Rs. 50,000/- and all the three applicants have also deposited 50% of the amount of penalty imposed under both the Adjudication Orders as per the Order of the Commissioner (Appeals) and they may not be directed to deposit any further amount either towards duty or penalty. We also heard Shri M.P. Singh, learned D.R., who reiterated the findings as contained in Adjudication Orders and the impugned Orders.
4. We have considered the submissions of both the sides. The main issue as to whether the clearances of excisable goods effected by the three Applicants have to be clubbed together for the purpose of granting exemption under Notification No. 16/97-CE is an arguable issue. All the Applicants have made pre-deposit of the amount of excise duty and penalty as per the Orders passed by the Commissioner (Appeals). We are of the view that no further pre-deposit is required to be made by any of the Applicants. We, therefore, waive the pre-deposit of remaining amount of duty of excise and penalty and stay the recovery of the same during the pendency of the appeals. All the appeals are posted for final hearing on 27th December, 2000.