TaxTMI 
TaxTMI 
TaxTMI 
2012 (8) TMI 931
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....er is a partnership firm engaged in the business of processing of textile fabrics. The second petitioner is a proprietory firm doing the same business. The preventive officers of the Central Excise Commissionerate visited the premises of the petitioners on 30.01.2003. During the course of investigation, they found that the petitioners-assessees had wrongly claimed the exemption of duty under two notifications dated 28.02.1999 and 01.03.2000 issued by the Central Government providing for exemption to textile fabrics, if they were processed without the aid of power or the steam. It was noticed that the processes of stirring of dyes, colour, dyeing of fabrics, water treatment plant and other connected processes carried out by the petitioner with aid of the power. 2.1 On that basis, a common show cause notice dated 20.05.2003 was issued raising a demand of Rs. 2,54,02,402/- in respect of the fabrics processed during April 1998 to January 2003 against the first petitioner. Against the second petitioner, similarly, a demand of Rs. 2,65,20,218/- was raised. Imposition of penalty was also proposed in the show cause notice. Respondent No.3 by Order-In-Original (OIO) dated 20.01.2005 confi....
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.... was earning only salary income and had no financial means to make the deposit. On these pleas, it was prayed to restore the main appeals on its original number. Secondly, it was prayed that the stay order dated 12.03.2007 be recalled and be amended by dispensing with the deposit requirement. 2.5 The Tribunal dismissed the said applications on 18.01.2012 by the impugned order. The relevant part of the order of the Tribunal reads as under. "2. Learned counsel arguing on behalf of the assessee applicants submits that the applicants had no means to deposit the amount of predeposit ordered by the Bench. It is also his submission that subsequent development taken place wherein the Revenue officers have attached the property of the appellants, which is valued approximately at Rs. 60 Lakhs as approved by the approved valuer and that should be considered as enough deposit to cover the pre-deposit ordered by the Bench in the stay order. It is his submission that applications are allowed and appeals restored and heard on merits and disposed of." 3. Learned SDR, on the other hand would submit that the applications for restoration have been filed belatedly. It is his submission that the app....
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....he proposition that requirement of pre-deposit was only procedural and it could not extinguish statutory right to appeal. On the basis of decision in Sun Polytron Inds. Ltd. Vs. Commissioner of Central Excise, Vapi [2009 (236) ELT 243 (Tri. Ahmedabad)], it was submitted that in that case, as also in the present case, sufficient security in shape of factory was already with the Revenue and, therefore, pre-deposit of duty and penalty was required to be waived. It was submitted that liability of the company was limited to assets available. Decision in Jai Goga Enterprises Vs. CCE [2008 (232) ELT 572 (Tri.)] was relied on. The decision of a Division Bench of this Court in Bhavya Apparels Pvt. Ltd. Vs. Union of India [Special Civil Application No. 9284 of 2011 decided on 01.12.2011] was relied on and it was submitted that since the petitioners are unable to pay the pre-deposit amount, a respite may be granted and the Tribunal may be directed to decide the appeals on merits. 4.3 As against that it was submitted by learned advocate for the respondent that against the total demand of duty for more than Rs. 5 crores and equivalent penalty, the property was only of the value of Rs. 65 lacs,....
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....at allowing of loss of time was culpable on part of the petitioners. There was a yawning inaction on their part for four years. After July 2008 when their Tax Appeal was dismissed, they woke up only when the order of attachment was passed in August 2011. The averments in the restoration applications did not spell out any explanation for inaction except that the petitioners had no financial means. The change of circumstances raised as ground on behalf of the petitioners does not convince us inasmuch as the circumstances were petitioners' own creation. The events narrated above further depicted that the petitioners approached the forums/court of law at their convenient time. In the facts and circumstances, the conduct of the petitioners suggested only that they were interested in delaying and dodging. The conduct of the petitioners and the stock-plea about financial inability could not be countenanced. 5.3 When the proceedings of the court are made instrumental only for the purpose of whiling away time and to rid off the obligations arising from orders of court of law, it amounts to abuse of process of law. The conduct of the petitioners showed that they acted in that fashion and ab....