M/S. Modern Industries Vs. Commissioner of Central Excise, - Court Judgment

Excerpt:

.....show cause notice also proposed to initiate action for confiscation land building etc. proceeding were also initiated against the proprietor under rule 209 a of the central excise rules, 1944, the replies had filed and after hearing the parties adjudicating authority confirmed the demand. hence the present appeal.2. shri gc biradar ld. advocate appearing for the applicant states looked into the show cause notice especially annexure "b" thereof. it will be cleared that the entire basis of the demand is based on hypothesis only. he therefore states that the impugned order passed by the authority below is wrong in law. on the other hand shri bk choubey ld. jdr would argue that the entire operations for the assessee is premeditate one and he relies on machines contained in finding given in paragraph 15 at page 7 of the order.3. we have considered the rival submission. the entire case depends upon appreciation of evidence. the show cause notice has been seen as contained in page 37 of the paper book. the assessee has already paid rs. 3,15,000/- towards the duty before the issuance of show cause notice. we are therefore prima facie of the view that case justifies waiver of the.....

Judgment:

1. This is an application for stay of operation of a sum of Rs. 32,000/- towards duty and penalty of rs. 3,47,980.50/-. The applicants are engaged in the manufacture or Nail Polish and Sticker Kumkums falling under Chapter 33 of the Central Excise Tariff Act, 1985. They claimed exemption under Notification No. 140/83 dt. 5.5.83. The officers of the department noticed that some time on 20.2.98, certain goods were clandestinely removed through a tempo bearing Registration No. MMS 3565 investigation was started. A resulting in the issuance of the show cause notice dt. 18.8.98 claimed a sum of Rs. 32,980/- towards duty because out of the total demand Rs. 3,47,980/- a sum of Rs. 3,15,000/- was paid before the issuance of show cause notice and proposal was also their to impose a penalty of Rs. 3,47,980/-. the show cause notice also proposed to initiate action for confiscation land building etc. Proceeding were also initiated against the Proprietor under Rule 209 A of the Central Excise Rules, 1944, the replies had filed and after hearing the parties adjudicating authority confirmed the demand. Hence the present appeal.

2. Shri GC Biradar Ld. Advocate appearing for the applicant states looked into the show cause notice especially annexure "B" thereof. It will be cleared that the entire basis of the demand is based on hypothesis only. He therefore states that the impugned order passed by the authority below is wrong in law. On the other hand Shri BK Choubey Ld. JDR would argue that the entire operations for the assessee is premeditate one and he relies on machines contained in finding given in paragraph 15 at page 7 of the order.

3. We have considered the rival submission. The entire case depends upon appreciation of evidence. The show cause notice has been seen as contained in page 37 of the paper book. The assessee has already paid Rs. 3,15,000/- towards the duty before the issuance of show cause notice. We are therefore prima facie of the view that case justifies waiver of the payment of remainder of the duty confirmed as also penalties imposed under the impugned order and stay the recovery thereof during the pendency of the appeal.