TaxTMI 
TaxTMI 
2012 (3) TMI 39
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....manufacturer of Asbestos Cement Sheets, classifiable under the sub-heading 6811 of the Central Excise Tariff Act, 1985, using raw materials, like, cement, fly ash, cotton, wood pulp, etc. 3. It has been further stated that the petitioner was issued with a show cause notice, dated 7.4.2008, proposing to demand an amount of Rs.15,37,57,177/-, towards the Central Excise Duty on the Asbestos Cement Sheets cleared by the petitioner, during the years 2003-04 and 2004-05, on the ground that they have wrongly availed exemption Notification No.6/2002, dated 1.3.2002, during the above periods, by accounting bogus/excess fly ash receipts. 4. It has been further stated that, based on the investigation conducted, in view of the statements obtained from M/s.Natesan Engineers and Contractors and M/s.Natesan construction products and on the basis of the information provided by the Superintending Engineer, M/s.Mettur Thermal Power Station, and as per the procedures laid down by the Government, for the purpose of availing the exemption notification, the second respondent had come to the conclusion that the petitioner had not used the required percentage of fly ash i.e., 25% or more i....
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.... dated 6.5.2009. The demand order confirmed an amount of Rs.13,23,85,374/- towards the Central Excise duty for the periods in question, along with the interest and penalty of an equal amount, under section 11 AC of the Central Excise Act and Rule 25 of the Central Excise Rules. 8. It has been further stated that, aggrieved by the order passed by the second respondent, the petitioner had filed an appeal before the first respondent, along with a stay application. While deciding the stay application, differing views had been expressed by the Judicial Member and the Technical Member. Therefore, the matter had been placed before the President, Customs Excise and Service Tax Appellate Tribunal (South Zonal Bench), Chennai, for the nomination of a third member. Since, the third member nominated by the President had concurred with the opinion of the Technical Member, the petitioner had been directed, by the impugned order, dated 8.12.2011, to pre-deposit an amount of Rs.4,50,00,000/-, towards duty, within six weeks from the date of the order and to report compliance of the order, to the Deputy Registrar, on 31.1.2012. Aggrieved by the said order, the petitioner had preferred the pr....
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....open to them to investigate and to penalise the petitioner for non-maintenance of the accounts, by the suppliers of fly ash, even though it may be open to them to initiate appropriate action against such suppliers. As long as the conditions stipulated in the notification had been complied with, by the petitioner, it would not be open to the departmental authorities to direct the payment of excise duty, by the petitioner, along with interest and penalty, as found in the Order-in-Original No.4/2009, dated 6.5.2009, which has been confirmed, subsequently. 12. It had also been stated that the petitioner is bound to show only the usage and consumption of fly ash. The notification does not specify the place from where the fly ash should be procured, or the persons from whom it has to be purchased. The petitioner had fully accounted for the procurement and usage of the fly ash. As such, the departmental authorities do not have a prima facie case to direct the payment of excise duty, by the petitioner and to penalise the petitioner by imposing the penalty thereon. 13. The learned counsel for the petitioner had relied on the following decisions in support of his contentions:....
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....at the order of the Commissioner be modified and the entire amount under demand be stayed till the final disposal of the appeal by the Assistant Commissioner. The Assistant Commissioner is directed to dispose of the pending appeal before him within two months from today." 13.3. In WARDHA COAL TRANSPORT PVT LTD., Vs. UNION OF INDIA 2009 (13) S.T.R. 490 (BOM.), the High Court of Bombay had held as follows: "8. It is not possible for us to agree with Mr. Desai. It is pertinent to note that in similar fact situation in SSV Coat Carriers Pvt. Ltd., the Tribunal has granted the prayer for waiver of predeposit. Similarly, in Kartikay Bulk Movers Pvt. Ltd. V/s. Commissioner of Central Excise, Nagpur delivered on 7-10-2008, where also the facts were somewhat similar, waiver of predeposit has been granted. Moreover, the tribunal in Sainik Mining & Allied Services Ltd.'s case (supra) has come to the conclusion that service tax liability does not arise in such cases. Learned counsel for the petitioners is right in contending that the petitioners have a prima facie case. We may usefully refer to the observation of the Supreme Court in Indu Nissan Oxo Chemicals Industries Ltd.'s ....
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....iled on behalf of the petitioner, and in view of the facts and circumstances of the case, and keeping in view the various decisions of the courts of law. 15. It had been stated that the Government of India had granted exemption from the payment of excise duty, in case of goods falling under entry 68, provided the goods in question contains not less than 25% of fly ash or phosphor -gypsum or both, by weight, vide Notification No.6/2002-CE, dated 1.3.2002, subject to the following conditions to be fulfilled by the manufacturers: "(i) The manufacturer maintains proper account in such form and in such manner as the Commissioner of Central Excise having jurisdiction may specify in this behalf, for receipt and use of the fly ash or phosphor-gypsum. (ii) Files monthly returns in form as may be specified by the Commissioner of Central Excise having jurisdiction." 16. It had been further stated that the petitioner had availed the exemption on the manufacture of the goods, in its factory, under the Notification No.6/2002-CE, dated 1.3.2002, under the guise of using fly ash purchased, from the Mettur Thermal Power Station, for the periods relating to the years ....
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....ay the Order-in -Original. The first respondent had passed an order, dated 8.12.2011, in stay order No.813 of 2011, by a majority of two members, asking the petitioner to pre-deposit an amount of Rs.4,50,00,000/-, towards duty, within six weeks from the date of pronouncement of the said order. It had also been stated that, subject to compliance with the said direction, pre-deposit of the balance amount of duty and interest and penalty had been waived during the pendency of the appeal. 21. It had been further stated that the stay order No.813 of 2011, dated 8.12.2011, had been passed, as per the provisions of Section 35 of the Act. The first proviso to the said section reads as follows: "Provided that where in any particular case, the (Commissioner (Appeals) or the Appellate Tribunal is opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the (Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue" 22. In view of the specific requirements to be considered by t....
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....etric tones per month by the Mettur Thermal Power Station. The assessee had procured only a quantity of 7285.060 during 2003-04 even though they have paid advance for lifting 9000 metric tones. Consequently, they have claimed refund of excess amount relating to 2251 metric tones. That being the case, the reason for accounting the said quantity as having been received from Mettur Thermal Power Station is not prima facie convincing. In other words, they have received from the Mettur Thermal Power Station lesser quantity than what was accounted as received from the Mettur Thermal Power Station. The explanation offered was that the said quantity of 2251.121 metric tones of fly ash was procured from open market by Shri Santhosh Kumar. Similar claims has been made in respect of 7957.690 metric tones of fly ash accounted for the year 2004-05 in excess of what has been received from the Mettur Thermal Power Station. Though, Shri Santhosh Kumar assured to reveal the names and addresses of persons from whom fly ash was procured from "open market", he failed to do so. In the absence of evidence from procurement of fly ash by the firms of Shri Santhosh Kumar, prima facie, their claim that they....
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....d. 27. The learned Central Government Standing Counsel appearing on behalf of the second respondent had relied on the following decisions in support of contentions: 27.1. In BENARA VALVES LTD. AND OTHERS Vs. COMMISSIONER OF CENTRAL EXCISE AND ANOTHER (2009) 20 VST 297 (SC), the Supreme Court had held as follows: "8. It is true that on merely establishing a prima facie case, an interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand on, it would be undesirable to require the assessee to pay the full or a substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relie....