Customs, Excise and Gold Tribunal - Delhi
C.N. Sukumaran vs Collector Of Central Excise on 8 February, 1994
Equivalent citations: 1995(75)ELT360(TRI-DEL)
ORDER
Harish Chander, President
1. Shri C.N. Sukumaran of M/s Vanitha Cosmetics and Shri V.G. Hirusah of M/s Hirusah Enterprise of Kancheepuram have filed appeals being aggrieved from the order passed by Collector of Central Excise, Madras. Simultaneously, they have also filed stay applications, for dispensing with the pre-deposit of Rs. 4,63,403/- towards duty and Rs. 50,000/- towards penalty on Shri C.N. Sukumaran and penalty of Rs.10,000/- on Shri V.S. Hirusah. Since, both the matters have emerged from the same order and as such the same are disposed of by this common order.
2. Shri V. Lakshmikumaran, the learned advocate, has appeared on behalf of the appellants. He pleaded that in the case of Shri Hirusah vide Order-in-Original dated 15-10-1992 an adjudication was made and allegation for clearances of Rs. 30 lakhs were reduced to Rs. 17 lakhs approximately in that case and a search was effected on 8-11-1990 on the appellant's premises. He pleaded that the brand name "Lavanya" belongs to Shri Hirusah and the appellant has claimed the benefit of Notification No. 140/83-CE and as such the present proceedings are hit by limitation. In support of his arguments, he cited a decision of the Tribunal in the case of Kanam Foam Industries v. Collector of Central Excise reported in 1993 (68) E.L.T. 368 (Tri.). Shri Lakshmikumaran, alternatively pleaded that in case the appellant's plea of limitation is not accepted then the duty to be paid by the appellant has to be deducted from the price in terms of Section 4(4)(d)(ii) of the Central Excises and Salt Act, 1944. In support of his argument, he cited a decision of the Tribunal in the case of Central Pulp Mills Ltd., Surat v. Collector of Central Excise, Surat, reported in 1993 (21) ETR 723. He pleaded that the duty on recalculation works out to Rs. 2,20,405.60. On financial hardship, Shri Lakshmikumaran drew the attention of the Bench to the Profit and Loss account for the year ending 31-3-1991 and 31-3-1992. For the years ending 31-3-1991, the total capital of the appellant was Rs. 21,816/- and for the year ending 31-3-1992, the total capital was Rs. 31,861/-. Shri Lakshmikumaran further stated that the appellant does not have any other assets - movable or immovable. He stated that the appellant is not now in business. He further stated that his wife is working as a school teacher and household expenditure is being met by him from the income earned by his wife. He further stated that this statement may be treated as a statement across the Bar as per the instructions from his client. He pleaded for the dispensing of the duty and penalty amounts.
3. Shri A.K. Singhal, the learned JDR, who has appeared on behalf of the respondent, pleaded that the plea of deduction of duty from the price was duly taken by the appellant before the Collector and the same was not accepted. He further argued that the appellant cannot plead that the extended period of limitation cannot be invoked in this case. He argued that in the earlier adjudication Shri Sukumaran was not a party and as such the appellant cannot take this plea before the Tribunal. He pleaded for the rejection of the stay applications.
4. We have heard both the sides and have gone through the facts and circumstances of the case. We have also perused the earlier show cause notice in appeal No. E.659/93-A and Sh. Sukumaran was not a party in the earlier proceedings in the case of Hirusah Enterprises. Since Shri Sukumaran is not a party in the earlier show cause notice, he cannot take a plea of limitation and the plea of limitation is not tenable. Now coming to the financial hardship, we have perused the profit and loss account of Shri Sukumaran for the years ending 31-3-1991 and 31-3-1992. The net profit was Rs. 21,816/- and Rs. 10,045/- respectively. The total capital was Rs. 21,816/- and Rs. 31,861/- respectively for the years ending 31-3-1991 and 31-3-1992. During the course of arguments we have enquired from Shri Lakshmikumaran that how much amount can be paid conveniently, to this he stated that Shri Sukumaran can pay Rs. 60,000/-. We have taken the fact that Shri Sukumaran has to meet the household expenses from his wife's salary. Shri Singhal has also got no objection for payment of the said amount in view of the submissions made by the learned advocate. Keeping in view the Hon'ble Supreme Court's decision in the case of Spencers & Co. Ltd., Madras v. Collector of Central Excise which was followed by the Tribunal in the case of Sonodyne Television Company v. Collector of Central Excise, Calcutta reported in 1985 (22) E.L.T 582 (Tribunal), we are of the view that if the appellants are desired to deposit the duty amount of Rs. 4,63,403/-, Rs. 50,000/- as penalty and Rs.10,000/- penalty by Shri Hirusah, it will amount to undue hardship. We were told during the course of arguments that after the calculation of duty in terms of provisions under Section 4(4) (d) (ii), the duty will works out to Rs. 2,20,405.60 and this view of recalculation was confirmed by the various decisions of the Tribunal. Keeping in view the totality of the facts and circumstances of the case, we dispense with the pre-deposit of the duty amount of Rs. 4,63,403/- and penalty of Rs. 50,000/- on the condition that Shri Sukumaran should deposit Rs.60,000/- ( Rupees Sixty thousand only) within 3 months from today. We are also of the view that if Shri Hirusah is desired to deposit the penalty amount of Rs. 10,000/- it will amount to undue hardship. Our view is fortified by the earlier proceedings in Shri Hirusah's case in appeal No. E.659/93-A. Accordingly, we dispense with the pre-deposit of penalty amount of Rs.10,000/-. We further direct that during the course of pendency of appeals, the Revenue authorities shall not pursue for recovery of the balance amount of duty and penalty. In case the appellants fail to comply with the terms of this order, the stay order shall stand automatically vacated. The matters to come up for mention on 1st June, 1994. In the result, stay application No. E.1714/93-A is partly allowed and stay application No. E.1715/-93-A is allowed.