2009 (10) TMI 290 - HC - Central Excise

Directors & manager must deposit Rs. 10 lakhs each as condition for appeals. Court upholds order citing substantial evidence.

The appeals were dismissed, affirming the Tribunal's order that required the directors and the manager to deposit Rs. 10 lakhs each as a precondition for ... Clandestine removal- All these four Central Excise Appeals, under Section 35G of the Central Excise Act, 1944, arise out of the orders passed by the Customs, Excise and Service Tax Appellate Tribunal. Appeal by the appellant-company and the three directors of the company, against the adjudication order of the Commissioner, Central Excise, Noida confirming the payment of Central Excise Duty (including cess) and also the penalty of the like amount, on the company under the proviso to Section 11A(1) and Section 11AC read with Rule 25 of the Central Excise Rules, 2002. In this case goods removed from factory without manufacturer’s invoice. Traders invoice showing sale of subject goods was issued even before weighment of consignment. Neither manufacturer’s invoice nor any other record available in the factory. Prima facie, assessment made on the basis of materials collected at the time of inspection as well as through the weighment agency on the trucks which were owned by directors, was sufficient to record findings of clandestine removal. Appellants neither made out a good case on merits to be considered by Appellate Tribunal not proved undue hardship to waive condition of pre-deposit of Basic Excise Duty and penalty. Issues Involved:1. Ex parte assessment and non-supply of documents.2. Allegations of clandestine removal of goods.3. Financial hardship and pre-deposit requirements.4. Observance of principles of natural justice.Detailed Analysis:1. Ex parte assessment and non-supply of documents:The appellants argued that the assessment was conducted ex parte and that crucial documents, such as invoices, were not supplied to them. The directors were under arrest during the proceedings, which they claimed impeded their ability to participate effectively. However, the respondents countered that all documents were provided on 6-5-2007, and the Appellate Tribunal recorded a prima facie finding confirming the supply of documents. The Tribunal noted that the directors did not request these documents explicitly, and the statements of the directors were considered by the Adjudicating Authority.2. Allegations of clandestine removal of goods:The case involved allegations that the appellant-company was clandestinely removing finished goods without maintaining proper accounts or issuing invoices. During a surprise inspection, a private register and weighment slips were found, indicating the removal of goods without proper documentation. The goods were transported using trucks owned by the company's directors. The adjudication order detailed the evidence, including statements from the directors and other involved parties, which supported the claim of clandestine removal. The Tribunal found the assessment based on these materials sufficient to record findings of clandestine removal.3. Financial hardship and pre-deposit requirements:The appellants claimed that they lacked sufficient funds to meet the pre-deposit requirements, causing undue hardship and affecting their right to appeal. The balance sheet disclosed a turnover of Rs.1.4 crores, qualifying for exemption under Notification no. 8 of 2003. However, the Supreme Court in Benara Valves Ltd. v. CCE and Monotosh Saha v. S.P. Director Enforcement Directorate emphasized that 'undue hardship' must be more than mere hardship and must be established with concrete evidence. The Tribunal, considering these principles, directed the directors and the manager to deposit Rs. 10 lakhs each as a precondition for filing their appeals.4. Observance of principles of natural justice:The court examined whether the principles of natural justice were observed during the adjudication process. The adjudication order provided adequate opportunities for the appellants to present their case, and the findings were based on a thorough consideration of the records and materials produced. The court found that the appellants failed to make a compelling case on merits or demonstrate undue hardship to justify waiving the pre-deposit condition. The Tribunal's decision to require a partial pre-deposit was deemed appropriate and provided sufficient relief to the appellants.Conclusion:The appeals were dismissed, affirming the Tribunal's order that required the directors and the manager to deposit Rs. 10 lakhs each as a precondition for their appeals. The court found no merit in the appellants' claims of ex parte assessment, non-supply of documents, or undue financial hardship, and upheld the findings of clandestine removal of goods based on substantial evidence.