Customs, Excise and Gold Tribunal - Delhi
Lippy Trading Corporation vs Collector Of Central Excise on 15 March, 1995
Equivalent citations: 1995(79)ELT287(TRI-DEL)
ORDER K. Sankararaman, Member (T)
1 After hearing both sides in regard to the stay petition filed by the applicants, M/s. Lippy Trading Corporation, Agra, we are not satisfied that a prima facie case has been made out by the applicants. Shri J.S. Agarwal, learned counsel for the petitioners mainly relied upon the earlier decision in the appeal filed by them before the Collector (Appeals) where he contended the appellate authority had considered all the aspects involved in the present case also and held in their favour as far as the purchase of a Buffing Machine is concerned. The Department has relied upon the fact that this machine had been used by them in the manufacture of footwear and accordingly they are not eligible for the benefit of exemption for the manufacture of footwear without the use of power. Shri Agarwal contended that when a finding by the Collector (Appeals) was in their favour on the question of use or non-use of power in the manufacture of footwear by them, the Collector could not have instituted subsequent proceedings alleging mis-statement, suppression etc. and invoking the longer period. He pleaded financial hardship as the applicants are a very small scale unit.
2. Shri P.K. Jain, learned Senior Departmental Representative countered the submission made by the learned counsel and contended that the subsequent proceedings initiated by the Collector were permissible as the question of suppression of the relevant facts was not the issue before the Collector (Appeals). The duty demand is fairly substantiated and the plea for stay is not supported by any audited certificate or bank guarantee. Further the applicants are a partnership firm and the solvency of the partners could be relevant in deciding the request for stay. Viewed from this angle the plea made does not merit acceptance, he concluded.
3. We have considered the submissions. The merits of the issue involved will require detailed examination of the facts involved to arrive at even a prima facie decision. In the circumstances and taking into account the plea of financial hardship though not supported by any published report or balance sheet, we are inclined to waive the pre-deposit of the duty demanded subject to the applicants making a pre-deposit of a sum of Rs. 2 lakhs within a period of 3 months from today. They should report compliance on 22-6-1995. Subject to their making the pre-deposit of the duty amount as above, the requirement of the balance amount of duty and the penalty amount is waived for the purpose of hearing the appeal. Recovery established is stayed during the pendency of the appeal.