Customs, Excise and Gold Tribunal - Delhi
Compex Metal And Chemicals P. Ltd. vs Commissioner Of Central Excise on 12 April, 2007
Equivalent citations: 2007(118)ECC128, 2007ECR128(TRI.-DELHI)
ORDER
R.K. Abichandani, J. (President)
1. The applicant seeks interim stay of the order of the Commissioner upholding the duty demand of Rs. 2,40,723/- and imposing reduced penalty of Rs. 3,75,502/- as well as ordering differential duty of Rs. 80,585/-.
2. The learned Counsel for the appellant contended that scrap which was imported was contaminated. Though the bill of entry showed import of 27.300 MT of scrap, 16.649 MT shortage was attributable to concrete, plastic and glass etc. He, therefore, submits that duty demand was not justified and penalty could not be imposed.
3. The record discloses that when the goods were imported, no such discrepancy was noticed on examination thereof under the warehousing certificate. The appellant has not produced any evidence to show that soon after the receipt of the imported scrap, they informed the supplier that out of 27.3 MT, more than 16 MT was not iron scrap but was concrete, plastic and glass etc. The segregation of the material which is alleged was not done under any intimation to the department.
4. From the material on record, it appears that the appellant had received the scrap and the only dispute, as reflected from the reply dated 2.10.04 of the supplier related to the quality claim for 10 MT. Even that letter did not refer to any objection of the appellant on the ground that any part of the material was not iron scrap. The story put up by the appellant is clearly an afterthought and a poor justification putforth for the shortage of iron scrap to the extent of 16.674 MT which was received as per the initial inspection at the time of the issuance of warehousing certificate, in the total quantity of 27 MT. The contention of the learned Counsel for the appellant that the business of the appellant has closed down and, therefore, there will be undue hardship, cannot be accepted in the absence of appellant's giving any particulars about its balance sheet, its assets both movable and immovable and the guarantees and liabilities of the Directors of this private limited company. No case for waiver of pre-deposit is made out.
5. The contention of the learned Counsel that the differential duty amount of Rs. 80,585/- was wrongly claimed because the value of the scrap cleared was not more than Rs. 30 lakhs is misconceived, because, as found in order-in-original, there was excess of 9.620 MT scrap cleared and that since the permission to clear was for both the quantity and value, the excess clearance was against the permission relating to quantity.
6. It is evident that the imported goods, which were found to be short were either removed, or finished goods were removed or the imported goods themselves were clandestinely removed. There is no warrant for showing any leniency on the facts of this case.
7. It is stated that a sum of Rs. One lakh was deposited vide challan dated 30.5.06 during the pendency of the appeal before the Commissioner. Having regard to the facts and circumstances of the case, we direct that on the appellant-company depositing the remaining amount of duty (in addition to Rs. One lakh which is said to be deposited) and 50% of the penalty amount payable under the impugned order within eight weeks from today, there shall be interim stay against the recovery of the rest of the amount payable by way of penalty under the impugned order, during the pendency of the appeal. If the amounts are not so deposited, both the appeals will stand dismissed. Post the matter for compliance report on 14.6.07.
Both the stay applications are disposed of accordingly.
(Pronounced and dictated in the open Court)