Customs, Excise and Gold Tribunal - Mumbai
Bindal Textile Mills Ltd. vs Commissioner Of Central Excise on 6 April, 2004
ORDER Archana Wadhwa, Member (J)
1. After hearing both the sides, I find that the Commissioner has dismissed the appeal for non-compliance with this stay order by which he has directed the appellant to deposit the entire amount of duty of Rs. 5,69,075/- (Five Lakhs Sixty Nine Thousand Seventy Five only) and penalty of identical amount.
2. Shri Shroff, learned advocate appearing for the appellants strongly contested that he has a good case on merits and the Commissioner (Appeals) should have decided the matter finally without insisting on any pre-deposit. He submits that the entire demand of duty is based upon the scrutiny of their records maintained for the period 21/5/97 to 15/12/98 alleging that since the records show difference in the quantity of grey fabric received by them for processing and processed fabric, such difference is attributed to clandestine removal on their part. He submits that apart from the said difference, there is nothing else on record to corroborate the revenue's allegation. As regards the difference, he submits that the same can be on account of number of factors and the very fact that receipt of the grey fabrics was recorded in their records as also the clearance of final product, is indicating of the fact that there was no malafide on the part of the appellant. He submits that the charge of clandestine removal is required to be upheld by production of positive and tangible evidence by the revenue, which is absent in the present matter. He also assails the impugned demand on the point of limitation and submits that the show cause notice for the period May 1997 to December 1998 was raised in May 2002 i.e. beyond the normal period of limitation of six months. In as much as the basis for raising the demand is their own documentary records, which were always placed by them before their Central Excise, no malafide can be attributed to them. The demand has been raised as a result of ambit objection and all the figures of receipt of grey fabric and clearance of final product were being placed by them before the revenue at the time of filing of their returns.
3. Countering the argument, Shri A. Chopra, JDR draw my attention to the statement of director of the company admitting its liable to pay duty and submits that it is for the assessee to explain the difference between the two figures. The appellant having failed to do so, the inevitable conclusion is that the fabric has removed clandestinely.
4. After considering the submission made by both sides, I find force in the appellant's contention that apart from the difference in the two figures, which have been arrived at from the appellants' own records, there is no other evidence to corroborate the department's allegation. I also find force in the appellants' plea of demand being time bar. As such I am of the view that the appellants have a prima-facie case on merits justifying their request for dispensing with the condition of pre-deposit of duty and penalty.
5. Accordingly, I set aside the impugned order and remand the matter to Commissioner (A) to decide the same on merits without insisting on pre-deposit.
6. Appeal is thus allowed by way of remand. Stay petition also gets disposed off.
(Dictated in Court)