M/S. Image Maker (P) Ltd. Vs. Cce, Calcutta-ii - Court Judgment

Excerpt:

.....i also find that the appellants have already availed the benefit of the modvat credit of the duty involved and have enjoyed the credit, which was not due to them in accordance with law laid down by the larger bench. as such i am not convinced that the stay order should be modified. in fact the appellants are liable to pay back the entire amount of duty in terms of the law declared by the larger bench. it was only takin into financial position that they were directed to deposit an amount of rs.1 lakh. as such i do not find any reasons to interfere in the stay order. miscellaneous application is accordingly rejected.5. however, in the interest of justice i grant the appellant a further period of one week from today to make the deposit. it is made clear that the failure to deposit the amount would result in automatic dismissal of the appeal without any further notice to the appellants.matter to come up for ascertaining compliance on 8.1.2001. subject to ascertainment of compliance the appeal itself would be heard and decided on the said date.

Judgment:

1. Vide the stay order no.S-1428/Cal/2000 dt.13.11.2000 appellants were directed to deposit an amount of Rs.1 lakh out of the total duty of Rs.1,36,537.25 confirmed against them by rejecting the modvat credit taken on endorsed invoices.

2. When the matter came up for ascertaining compliance today, Shri A.K.Biswas, 1d.adv. appeared on behalf of the applicant and submitted that the stay order has not been complied with. He however drew the attention of the Bench to the miscellaneous application filed by them for modification of the stay order. Accordingly Shri Biswas was heard on the said miscellaneous application. Shri A.K.Chattopadhyay, 1d.JDR appeared for the Revenue.

3. After going through the stay order and the modification application I find that the appellants were directed to deposit the said amount by observing that the issue involved in the present appeal is already decided against them by the larger Bench decision of the Tribunal in the case of Balmer Lawrie & Co. Ltd. v. CCE, Kanpur. Shri Biswas has advanced arguments on merits by putting forward a number of pleas, which after due consideration, I find are the pleas which were placed before the larger Bench and have been taken note of by the said larger Bench in the case of Balmer Lawrie.

4. As regards the financial position I find that the same was taken into account by the Bench while passing the stay order. Nothing new has been placed on record and when the issue dispute is already decided against the appellants, there is no justification for dispensing with the condition of predeposit of the duty confirmed against the appellants. I also find that the appellants have already availed the benefit of the modvat credit of the duty involved and have enjoyed the credit, which was not due to them in accordance with law laid down by the larger Bench. As such I am not convinced that the stay order should be modified. In fact the appellants are liable to pay back the entire amount of duty in terms of the law declared by the larger Bench. It was only takin into financial position that they were directed to deposit an amount of Rs.1 lakh. As such I do not find any reasons to interfere in the stay order. Miscellaneous application is accordingly rejected.

5. However, in the interest of justice I grant the appellant a further period of one week from today to make the deposit. It is made clear that the failure to deposit the amount would result in automatic dismissal of the appeal without any further notice to the appellants.

Matter to come up for ascertaining compliance on 8.1.2001. Subject to ascertainment of compliance the appeal itself would be heard and decided on the said date.