Customs, Excise and Gold Tribunal - Mumbai
Gangapur S.S.K Ltd., Krishna Sahebrao ... vs Commissioner Of Central Excise on 21 August, 2003
ORDER Jyoti Balasundaram, Member (J)
1. The above applications for waiver of pre-deposit of balance duty of Rs. 17,78,023/- and penalty of Rs. 25,78,050/- imposed upon the Sugar Mill and penalties of Rs. 2 lakh each on its Chairman, Ex-managing Director and Managing Director and penalty of Rs. 1 lakh upon the Proprietor of the Merchant Exporter arise out of the orders of the Chief Commissioner of Central Excise, Aurangabad.
2. The duty liability arises as a result of failure to export sugar cleared by the manufacturer to the Merchant exporter without payment of duty. Prima-facie the Sugar mills do not dispute the liability to pay the duty, as admittedly the sugar cleared to the Merchant exporter was not exported. However, they plead financial inability, bringing to our notice the fact that company has an accumulated loss of over Rs. 28 crores as on 31/03/2003 and that the unit has been closed since March 2003. The argument of time bar is raised before us in this manner - Show cause notice dated 19th April 2002 was issued wherein the extended period of limitation was not invoked against the applicants; by an addendum dated 24/07/2002, the proviso to Section 11A(1) of the Act, was invoked and penalties proposed on individuals also, which proposal was absent in earlier show cause notice. According to the Ld. Counsel for the applicant, addendum changes the entire basis of the case and he submits that entire demand stands barred by limitation.
3. Regarding imposition of penalty, it is his submission that the provisions of Section 11AC are not attracted for the reason already advanced by him in respect of the arguments on time barred nature of duty demand. As far as the individuals are concerned he submits that there is no finding by the Deputy Commissioner of Central Excise, Aurgngabad, regarding role of each person in the offence of evasion of duty and therefore the provisions of Rule 209A of the Central Excise Rules, 1944 are not attracted.
4. Ld. Counsel for the Merchant exporter adopts that argument regarding imposition of penalty advanced before the Bench by the Ld. Counsel for other individual applicants.
5. The prayer for waiver of pre-deposit of balance amount of duty and penalty is opposed by Ld DR who submits that the order speak for itself regarding the duty liability, and also submits that the plea regarding time bar is not a plea that is to be prima facie considered as it goes into the question of the nature of the addendum. Regarding penalties on individuals he re-iterates the findings contained in para 7 of the impugned order.
6. On hearing both sides, we are of the view that the prima-facie the duty demand is sustainable. However having regard to the financial position of the company as reflected in the balance sheet and also noting that Rs. 6 lakhs already stands paid, we direct further pre-deposit of Rs. 10 lakhs towards the duty demand within a period of eight weeks from today. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without further notice. Pre-deposit of penalties imposed on the mill and the individuals shall stand waived and recovery thereof stayed pending the appeals.
7. Compliance by the Sugar mill is to be reported on 06/11/2003.