Judgment:
1. Applications are for waiver of deposit of duty of Rs. 17.06 lakhs approximately from Kumar Cotton Mills Private Limited, the processor of fabrics, penalty of equivalent amount, interest of Rs. 520/-, unquantified interest of 36% on amount short paid and penalty of Rs. 1.7 lakhs by Pravinbhai D. Pate, its director 2. The applicants are absent and unrepresented despite notice. The matter was first listed for hearing on 15.4.2000 and it was adjourned at the request of the counsel for the applicant to 12^th December, 2000. On this date the applicants were absent and unrepresented and, on a request by departmental representative, adjourned to 2^nd February, 2001. An application was received from the applicants seeking adjournment on this date on the account of extensive damage caused to the factory by the earthquake. The matter was therefore adjourned to today. In the absence of the applicants, we have read the submissions in the stay applications, other relevant papers and heard the departmental representative.
3. The applicant is a processor of textile fabrics. In terms of the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules 1998, according to which duty is payable by a processor of textile fabrics on the capacity of its stenter determined on the basis of the details of the machine furnished, the Commissioner provisionally determined the capacity. Physical verification of the stenters showed that the presence of 300 cm. rail length in one of the stenters of brand Hitech. The department was of the view that, in determining the capacity of the stenter, rail length should be included. The officers also found that the stenter had four chambers instead of three chambers declared, and this was accepted by the director of the Company. The Commissioner therefore determined the capacity of this stenter, and the duty payable, on the basis of four chambers and adding rail length to the chamber capacity. Subsequently notice was issued to the manufacturer alleging that the duty so determined had not been paid. In reply to the notice the applicant disputed the inclusion of the galleries in determining the capacity of the stenter, claimed that there were only three chambers and not four, and also claimed abetment on the ground that one of the stenters had been dismantled for sometime. The Commissioner did not accept any of these contentions, and confirmed the duty demanded in the notice, demanded interest on the duty, and imposed penalties. Hence these appeals and applications.
4. The larger bench of the Tribunal in its decision in Sangam Processors Bhilwara Limited Vs. CCE 2001 (127) ELT 679 has held that in determining the capacity of the chambers the dimensions of galleries are to be excluded. This point is therefore in applicant's favour.
5. It is contended by the applicants that there were in fact only three chambers in the Hitech stenter and not four. There is, however, no evidence in support. Although it is claimed that the panchanama drawn in the presence of the officers showed the presence of three chambers and not four, it has not been produced. The Commissioner records that the correctness of the panchanama drawn on 22.3.1999, showing the presence of four chambers, was not disputed before him.
6. As to the claim abatement, the matter has to be gone into in detail.
Sub-rule (7) of Rule 96ZQ provides for abetment subject to various conditions, one of them prima facie is not complied with. However, we agree that this issue will have to be determined after considering all the evidence available. Financial hardship is pleaded but no documents have bee produced in support.
7. Taking into account all these aspects, it appears to us reasonable to ask the manufacturer to deposit Rs. 6 lakhs and its director to deposit Rs. 20,000/-. On such deposit being made within two months from the receipt of this order we waive deposit of the remaining amount of duty and penalty imposed.