Customs, Excise and Gold Tribunal - Delhi
M/S. Suraj Marbles (P) Ltd. And Shri ... vs C.C.E. Jaipur on 9 February, 2001
ORDER K.K. Bhatia, Member (T)
1. The brief facts in this case are that on 10.5.97, the Anti Evasion Party of Central Excise Division, Ajmer visited the factory premises of the appellants. The appellants are the manufacturers of marble slabs falling under Sub-heading 2504.21. On physical verification of the stock, it was found that a total quantity of 15725.124 sq. mtrs. of irregular marble slabs were found in the stock against the recorded balance of 38039.90 sq. mtrs. in their RG.1 Register. Thus, the quantity of 22314.776 sq. mtrs. was found short. It was further found that a quantity of 2184.3138 sq. mtrs. of marble tiles were found in excess as against the quantity reflected in their RG.1 Register. They were issued a show cause notice dt. 12.5.99 in which they were called upon to show cause why Central Excise duty amounting to Rs.6,03,914/- should not be recovered from them for the irregular marble slabs found short and removed clandestinely under Rule 9(2) of Central Excise Rules, 1944 read with the proviso to Section 11A of the Central Excise Act, 1944. They were also called upon to show cause why penalty should not be imposed on them under Rules 9(2), 173Q and 226 of Central Excise Rules, 1944 read with Section 11AC of the Central Excise Act, 1944. Shri Padam Kothari and Shri Mahavir Kothari, Directors of the Company were also called upon to show cause why penalty should not be imposed on them under Rule 209A. These proceedings culminated in the Joint Commissioner of Central Excise, Jaipur-II passing an Order dt. 9.12.99, in which he confirmed the demand of Rs.6,03,914/- on the appellants. He imposed a penalty of Rs.5,000/- on them under Rule 173Q and a penalty of Rs.6,03,914.00 under Section 11AC. He further imposed a penalty of Rs.50,000/- each on Shri Padam Kothari and Shri Mahavir Kothari, Directors os the Company under Rule 209A.
2. The afore-stated Suraj Marbles (P) Ltd. filed an appeal before the Commissioner (Appeals), Jaipur. The Commissioner (Appeals) however, vide his Order dt.5.8.2000 dismissed the appeal of the party upholding the finding of the lower authority.
3. The present appeal is against the above order of Commissioner (Appeals). The matter is today listed for hearing the Stay Petition of the appellants - M/s. Suraj Marbles (P) Ltd. The appellants are not represented. However, Shri K.K. Anand, Advocate for the appellants has sent a letter dt. 6.2.2001, in which he has requested for adjournment, since he has to go out of station for some personal work. As the matter lies on a small premise and only the Stay Petition of the appellants is to be decided, I am not inclined to accede to the request of ld. Counsel for the appellants and proceed to dispose of the same on the basis of the documents on record. I have heard Shri A.K. Jain, JDR for the Respondents. The facts of the case are already stated above. The appellants in their written Memoranda of Stay Petition/appeal have contended that proper stock taking was not conducted and the Departmental offices had made only preliminary measurements. After obtaining the Directors' signatures on the stock taking report, they went away stating that they will be coming again for detailed verification, but they failed to come again. The same submissions were made before the lower appellate authority. In his finding the Commissioner (Appeals) has recorded that he has gone through the case records and submissions made by the appellants. On verification of the records, he has come to the conclusion that there was no evidence to contend that the Offices had made a preliminary measuremehts. He has observed that a detailed chart about the stock was prepared on physical verification on the spot on 10.5.97. The Director of the party as well as the Officers had put their signatures on each page of stock taking report comprising nine pages accepting excess of stock than the recorded balances in RG.1 Register as well as shortages of stock which were entered in RG.1 Register, but were not found available at the time of visit by the Departmental Officers. He has further observed that after signatures of stock taking report by all the concerned, RG 1 Register which was in the possession of appellants was taken into possession/resumed by the visiting Officers and necessary remarks made. This shows that there was nothing left which necessitated further verification of stock. These facts arrived at by the lower appellate authority are not controverted by the appellants. Therefore, the appellants have not been able to make out a prima facie case in their favour. The appellants have also not adduced any evidence in support of their plea of financial hardship. In view of these facts, I direct them to deposit a sum of Rs.4 lacks (Rs. four lacs) as part of the duty confirmed against them on or before 16.4.2001. On making such deposit, balance of the amount of duty and the amounts of penalty imposed on them shall stand waived and their recovery stayed till disposal of the appeal. The matter will be called for reporting compliance on 18.4.2001.
4. The Stay Petition No. E/S/1971/2000 and the connected appeal are filed by Shri Mahavir Kothari, Director. This Stay Petition is also listed for hearing today. This Stay Petition is filed against the Order-in-Appeal No. 810(KDT) /CE/JPR-II/2000 dt. 5.8.2000 passed by Commissioner (Appeals), Central Excise, Jaipur-II. However, on perusal of this order, it is observed that there are no findings against the appellant - Shri Mahavir Kothari and he is not penalised in any manner in this order. Therefore, this Stay Petition is misconceived and the same is dismissed as not maintainable.
5. (annnounced and dictated in the Court)