TaxTMI 
TaxTMI 
2008 (5) TMI 518
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....this Appeal on 29-6-07 also filed a Stay Petition on the same day seeking waiver of the predeposit after having indicated that they have not paid any amount towards the duty, interest and penalty. 3. The Stay Petition dated 29-6-07 was heard by this Bench on 14-1-08 when Dr. Samir Chakraborty, learned Advocate appeared before the Bench and argued the Appellants' case for waiver of the pre-deposit. He submitted before the Bench that the issue involved in this Appeal was similar to the one in another Customs Appeal case bearing No. 42/07 filed by the Appellants, in respect of which Stay Order No. S-795/KOL/07 dated 22-11-07 (SP. 180/07) was passed by this Bench directing the Appellants to pre-deposit an amount of Rs. 32.00 lakhs (Rupees thirty-two lakhs). Dr. Chakraborty, learned Advocate adopted the same arguments which he had advanced on earlier occasion in respect of the Ex. Appeal No. 42/07 containing a similar issue for which a similar Stay Petition was filed. In particular, he drew attention of the Bench to the alternative contention of the Appellants that in any case, they would be covered under the exemption Notification No. 23/2003-C.E., dated 31-03-03 under Serial N....
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.... the order impugned, the writ petition is disposed of by directing the learned Tribunal to consider the matter regarding pre-deposit afresh, if it is mentioned for reconsideration in the light of the statements made in the stay petition. I make it clear that I have not gone into the merits of the case and all points are kept open to be dealt with by the Tribunal in the event it is mentioned before the said forum." 5. From the above, we find that the Appellants have pleaded before the Hon'ble High Court that the Tribunal did not consider the merit of their Stay Petition, since the Company is sick and the Rehabilitation Scheme was yet to be finalised by BIFR. It was also submitted by the Appellants that they shall approach the Tribunal with a prayer for re-consideration of the Stay Petition in the light of the averments made in the Stay Petition. We also find that the Writ Petition has been disposed of by the Hon'ble Court directing the Tribunal to consider the matter regarding the predeposit afresh, if it would be mentioned for re-consideration in the light of the submissions made in the Stay Petition. 6. We note from a letter addressed to the Appellants by ....
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....lso heard Shri R.N. Das, learned Senior Counsel appearing for the Department. He states that it is not true that the Tribunal did not consider the merit of the Stay Petition when the matter was heard for the first time. He, further, states that Dr. Samir Chakraborty who appeared before the Bench for arguing the Stay Petition initially, was given full liberty to argue all points raised in the Stay Petition and only after he had advanced an alternative contention and intimated the quantum of duty liability on the Appellants, the Bench taking into consideration the financial difficulties of the Appellants, had directed the Appellants to predeposit an amount of Rs. 68.00 lakhs (Rupees sixty-eight lakhs) as against the duty and penalty liability of over Rs. 9.00 crores (Rupees nine crores) including the interest. 10. He, further, states that the Appellants have made sales in the Domestic Tariff Area and hence, they were entitled to the exemption subject to condition that no imported raw material was used in the goods sold in the DTA. He further states that it is well-settled that the Appellants seeking exemption have to strictly comply with the condition of exemption Notificatio....
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.... of the fact that the Appellants have used non-indigenous materials in the goods sold in the DTA and hence, they are not entitled to the exemption. The Appellants are required to strictly comply with the conditions of the exemption Notification and the Department has discharged its initial burden by showing presence of imported materials in the samples tested in the Chemical Laboratory. However, the detailed submission regarding use of the imported materials in the impugned goods can be examined and appreciated only at the stage of final hearing of the Appeal. But, prima facie, we find that the Appellants do not have a case in their favour and the balance of convenience lies in favour of the Revenue in view of the Chemical Test Report which says that the samples contained ineligible imported materials. 13. Shri Banerjee has also taken up the question of demand being barred by limitation. In this regard, we find that the Adjudicating Commissioner has come to a finding that the Appellants had concealed the fact of using imported raw materials to avail the duty-exemption with intent to evade payment of duty and hence, we hold that the extended period is attributable. In any ca....