TaxTMI 
TaxTMI 
2014 (5) TMI 299
X X X X Extracts X X X X
X X X X Extracts X X X X
....nvenience, we are giving the facts of D.B. Excise Appeal No. 39/2012-M/s. Savitri Concast Ltd. v. Commissioner of Central Excise, Jaipur-I Jaipur & Anr. 5. This appeal is directed against the impugned order of Custom, Excise & Service Tax Appellate Tribunal, New Delhi, dated 23-10-2012, whereby stay application filed by appellant, has been disposed off and appellant has been directed to deposit 25% of duty demand during pendency of the appeal and remaining amount of duty as well as amount of penalty, has been stayed till disposal of the appeal. 6. Appellant- M/s. Savitri Concast Ltd. is manufacturer of M.S. Ingots chargeable to Central Excise duty under heading 72.06 of the Tariff. Shri Harish Aggarwal is the Director of the appellant-Company, the appellant-Company, among others, supplied the M.S. Ingots to a rolling mill M/S. Shree Sharma Steel Rolling Mills Pvt. Ltd., Jaipur (hereinafter referred to as 'M/S SSSRM'). M/s. SSSRM manufacture bars/rods (saria) chargeable to Central Excise duty. The Jurisdictional Central Excise Officers on receipt of intelligence about the duty evasion by M/s. SSSRM, visited their unit on 10-9-2005. During the course of search of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bunal, vide its order dated 29-11-2011, passed an order, on interim basis for interim deposit. The appellant-Company was directed to deposit Rs. 10,00,000/- (Rs. Ten lacs) as an interim measure. Shri Harish Aggarwal Director of M/s. Savitri Concast Ltd. was directed to deposit Rs. 5,00,000/- (Rs. Five lacs) within four weeks and compliance was to be reported on 27-1-2012. 10. Thereafter, arguments were heard on the stay application and the Appellate Tribunal, vide its order dated 23-10-2012, directed the appellant-Company to deposit an amount of 25% of the duty demand, within a period of eight weeks and Shri Harish Aggarwal, Director of the appellant-Company was directed to deposit Rs. 3,00,000/- (Rs. Three lacs) within a period of eight weeks. Rest of the amount of duty and amount of penalty were stayed till disposal of the appeals. 11. Being aggrieved with the above interim order of the Appellate Tribunal, passed on the stay application, the appellant has preferred this appeal. 12. Following amount of duty and equal amount of penalty thereof involved in these appeals :- 1. D.B. Excise Appeal No. 39/2012 - M/s. Savitri Concast Ltd. v. Commissioner of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the order passed by this Court in the case of M/S. Shri Sharma Steel Rolling Pvt. Ltd. & Others v. Union of India & Others. 15. Learned counsel for respondents also submitted that in similar Circumstances, this Court dismissed D.B. Civil Writ Petition No. 1557/2012-Shree Cement limited v. The Commissioner (Appeals-II) & Ors., vide order dated 21-2-2012. It is also argued that in the matter of money, there cannot be any irreparable injury, therefore, no interim stay order should be passed in such matters, relating to excise duty or tax matters. He also referred the case of Indu Nissan Oxo Chemicals Ind. Ltd. v. Union of India (UOI) and Ors., reported in 2008 (221) E.L.T. 7(S.C.), wherein the Hon'ble Apex Court considered the submissions of assessee regarding financial hardship and held that even if there is financial hardship, the same cannot be a ground to dispense with pre-deposit amount and balance of convenience is not in favour of appellant. He, therefore, submitted that there is no merit in any of the appeals and the same are liable to be dismissed. 16. We have considered the submissions of learned counsel for the parties and examined the impugned orders passe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... without payment of duty and without issue of invoices. It is seen that while during period from July, 2005 to September, 2005 M/s. SSSRM had received 1188.07 M.T of M.S. Ingots, the invoices had been issued by the appellant company only for a quantity of 727 M.T. and about 461 M.T. of M.S. Ingots had been cleared without payment of duty. Beside this, the records recovered from SSSRM also indicate that during period from April, 2005 to June, 2005 the SSSRM had received M.S. Ingots valued at Rs. 5,25,33,509/- from the appellant company, the duty involved on which is about Rupees 86 lakhs. In view of this evidence on record, it cannot be said that the appellant company was not indulging in duty evasion the dispute basically would be only about the quantum, the evidence in respect of which can be examined only at the time of final hearing. At this prima facie stage, we are of the view that this is not the case for total waiver from the requirement of pre-deposit and some conditions have to be imposed for safeguarding the interest of the Revenue. The appellant company, therefore, is directed to deposit an amount of 25% of the duty demand confirmed against it within a period of eight we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er :- "By way of filing this writ petition, interim order dated 29-12-2011 passed by the Commissioner (Appeals-II), Customs & Central Excise under Section 35F of the Central Excise Act has been questioned. The question involved was that whether the appellants are entitled for credit to the extent of input/input service used in the production of electricity which was not captively consumed for manufacture of final product or for other purpose within the factory but was sold to other different legal entity out of the factory production of appellants as held by the Adjudicatory Authority. Considering the fact that supply of electricity was not within factory, we find the order to be justified. Even otherwise, no Irreparable Injury is going to be caused by dispensing with deposit of amount of Cenvat credit of Rs. 53,17,767/- and Rs. 90,93,961/- availed by petitioner as well as 50% of the amount of penalty imposed under Rule 15(1) of the Cenvat Credit Rules, 2004, which is Rs. 8,50,000/- in case of appellant No. 1 and Rs. 14,50,000/- in case of appellant No. 2, within thirty days of receipt of the order and on deposit of the aforesaid amount recovery of interest and rest of the am....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act. 10. Principles relating to grant of stay pending disposal of the matter before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially. 11. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. v. Amalendy, Das and Ors. [1984] 146 ITR 624 (S.C.), Samarias Trading Co. Pvt., Ltd., v. Samuel and Ors. [1985]2 SCR 24 and Assistant Collector of Central Excise v. Dunlop India Ltd., 1985 ECR 4 (S.C.) 12. It is true that on merely establishing a prima facie case, 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, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing form the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such....