Customs, Excise and Gold Tribunal - Mumbai
Mahalaxmi Tube Industries, J.V. Shah, ... vs Commissioner Of Central Excise & ... on 8 July, 2003
Equivalent citations: 2003(159)ELT1062(TRI-MUMBAI)
JUDGMENT
Gowri Shankar, Member (Technical)
1. Application by Padmavati Tubes is for waiver of deposit of duty of Rs. 29,23,187/- to which Rs. 1.5 lakhs has already been paid, and a penalty of equivalent amount imposed. The Commissioner has also demanded interest on the quantity which is unquantified. Application by C.M. Vohera, power of attorney holder, Piyush Vohera, partner are for waiver of deposit of penalty of Rs. 10 lakhs and Rs. 5 lakhs respectively. Applications by Mahalaxmi Tube Inds. and J.V. Shah, its partner are for waiver of deposit of penalties Rs. 48,747/- and Rs. 4000/- respectively imposed on them.
2. We have heard J.V. Shah for himself and Mahalaxmi Tubes Inds. The applicants are absent and unrepresented despite notice.
3. Padmavati Tubes is a manufacturer of brass tubes. The officers in the course of search of the firm found a number of documents containing account relating to production of the material and clearance of finished goods by the assessee. They were of the view that the duty have not been paid and they did not figure in the statutory records maintained by the assessee. The Commissioner records that C.M. Vohera had admitted that no duty paid on these goods and admitted the correctness accountant of the firm. Piyush Vohera disclaimed any knowledge of these accounts. It is on the adjudication of the common notice issued to these persons demanding duty and proposing penalty that the Commissioner's order has been passed.
4. In this order, the Commissioner has demanded the duty on his view that the brass tubes referred to the accounts were manufactured and cleared without payment of duty. He has found that Mahalaxmi Tubes removed brass scrap generated in the factory to Padmavati Tubes without payment of duty thereupon but has found that no duty was payable on the scrap because it was within the limit of exemption specified in notification 7/97 but imposed penalties for failure to maintain accounts.
5. It is not possible to accept the contention in the application by Padmavait and C.M. Vohera that the Commissioner's order has been passed in contravention of the principles of natural justice. The Commissioner records that these persons did not appear before him despite three hearing and there is nothing in the stay application rebutting this. The contention that C.M. Vohera were claimed by force again is difficult to accept at this stage. The statement were recorded on 24.11.1997 and 11.12.1997 and he retracted in the admission by an affidavit a year later on 3.12.1998. IT is also significant to know that none of these applicants have even filed replies to the notice and the stay application does not explain why they chose not to do so. Prima facie reliance by the Commissioner on the statement of Vohera relating to the books of accounts entry in the books and the statement of the buyers establishes a case against the assessee. We therefore think it appropriate to ask to deposit duty of Rs. 10 lakhs by Padmavait Tubes, deposit of penalty Rs. 1 lakh by C.M. Vohera. We waive deposit of the penalty imposed on the assessee noting that penalty cannot be imposed on the assessee and its partner simultaneously. The Commissioner has himself dropped the demand for duty from Mahalaxmi Tubes. We waive deposit of the penalty imposed on it and on J.V. Shah, its partners.
6. Amounts to be deposited within a month from the receipt of the order. Compliance on 10.9.2003.