Customs, Excise and Gold Tribunal - Calcutta
Sriram Drinks (P) Ltd. And Others vs C.C.E., Bhubaneswar-I on 8 August, 2001
ORDER
G.R. Sharma
1. Appeals have been filed challenging the impugned order passed by the learned Commissioner. Along with the appeals the appellants have filed stay petitions for staying operation of the order as also waiving prediposit of duty and penalties imposed by the adjudicating authority. Four stay petitions are argued before us today. One stay petition has been filed by M/s Sriram Drinks Pvt.Ltd. for waiver of predeposit of duty and penalty and three stay petitions have been filed by Shri G.P.Sing, Smt. Pravadevei Goenka and Shri S.K. Goenka. Arguing the main stay petition against confirmation of demand of duty Shri K.K. Anand, learned Advocate submits that the authorities below have confirmed the demand of duty by disallowing partly transportation charges, rental and the whole amount expenses incurred on advertisements. He submits that transportation charges are normally admissible as deduction from the price. He submits that in the instant case the transportation was being organised on behalf of distributors and were not being incurred by the (sic) i.e. M/s Sriram Drinks Pvt. Ltd. Regarding rental the learned Counsel submits that rentals have been calculated on the basis of life of the glass bottles i.e. rotation in which particular glass bottle is rotated. Learned Counsel submits that advertisements in the case are done by separate firm and that no evidence has been brought on record that there was a flow-back of the money coming from the firm to the appellant. Learned Counsel submits that all these issues have been examined by the Tribunal from time to time and that the charges incurred on these accounts were deductible from the price for arriving at assessable value.
2. Learned Counsel submits that the financial condition of the appellant as reflected from the balance sheet shows that the appellant was incurring a loss and that the accumulated loss was amounting to more than Rs.21 lac. Learned Counsel also submits that the bank accounts and the cash balance in hand show that the applicant does not have any further money to deposit. Learned Counsel also submitted that the applicant had already deposited an amount of Rs.8,19,000/- (rupees eight lack nineteen thousand only). The prayer therefore, was that predeposit of duty may be waived.
3. Regarding imposition of penalty learned Counsel submits that penalty has been imposed u/s 11AC. He submits that the period of demand was from 1.3.94 to 31.10.95 whereas Section 11AC was brought in the statute book only on 28.9.96. He submits that there are number of decisions of the Tribunal wherein it has been held that retrospective effect cannot be given to this part of this statute. He, therefore, submits that there was no question of any penalty being levied and prayed that predepoist of penalty amy be also waived.
4. Shri K.K. Bhattacharya, learned Consultant appearing for the remaining three applicants submits that the penalties have been impose u/r 209A. Reading of Rule 209A, he points out, that these penalties are imposable only when the applicants had knowledge that the goods are labial to confiscation. He submits that in the instant case there was no confiscation order passed by the authorities below and therefore, penalties were not imposable. He also submits that even otherwise no role in evasion of duty has been brought out against the applicant. He, therefroe, prays that predeposit of penalty amounts form these three applicants may also be waived.
5. Shri V.K.Chaturvedi, learned SDR opposes the request and submits that authorities below have rightly brought out the way the applicants tried to evade duty. He submits that the adjudication order is clear in so far as admissible amounts are concerned. He submits that the applicant was collecting different charges, much higher amount than what was considered reasonable in the matter. He submits that the appellants have resources available with (sic) in one way or the other. Therefore, they may be asked to deposit the entire amount of duty and the other applicants may be directed to deposit the penalties also.
6. On careful consideration of the submissions made by both sides we note that in so fr as admissibility of the amounts as deduction from the price is concerned the entire issue is arguable. On the financial side we find that applicant has assets in the form of glass bottles and thus is in a position, if he is asked to deposit the amount of duty, if not full at least in part. Having regard to these facts and circumstances of the case we direct Sriram Drinks to deposit a sum of Rs.5.0 lack (rupees five lac only towards duty.
7. In so far the other applicants are concerned we find that prima facie they have a case in their favour, therefore, predepoist of penalty from them is waived.
8. The amount should be deposited on or before 8th October, 2001. On deposit of this amount deposit of the balance amount of duty shall remain stayed and recovery of duty and the total amount of penalties shall remain stayed during pendency of the appeals.
9. Failure to comply with the above directions shall lead to vacation of the stay and dismissal of the appeals for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944.
10. Matter should come up for reporting compliance on 15th October, 2001. On the date of reporting compliance if the orders are complied with the appeals itself will be taken up for hearing.
(Dictated & pronounced in Court)