M/S. Banswara Syntex Ltd. and Sh. Vs. Cce, Jaipur - Court Judgment

Excerpt:

.....duty in his statement dt. 21-4-99. we also heard shri r.c. sankhla, ld. dr.3. in sri chakra tyres case, the larger bench of the tribunal has held that when any demand of duty is created against an assessee, the original consideration received by an assessee of sale of the goods has to be taken as cum duty price for the purpose of demand. accordingly the ld. advocate, the applicants had already deposed the duty amount which would be due from them. we are thus of the vie that the ld.advocate has made out a strong prima facie case in their favour for waiver of remaining amount of duty and entire amount of penalty.accordingly we waive the requirement of pre-deposit of remaining amount of duty and entire amount of penalty imposed on both the applicants and stay the recovery of the same during the pendency of the appeal. both the appeals are posted for regular hearing on 19-6-2001.

Judgment:

1. These are two applications for waiver of pre-deposit and the stay of recovery of the following amount of duty and penalty;1. M/s Banswara Syntex - Rs. 3,59,733 ltd.

duty 2. Shri K.K. Anand, ld. Advocate submitted that in their declaration for the manufacture of blended yarn they claimed exemptions form payment of duty under Notification No. 5/99-CE dt. 2-6.98 in respect of yarn of Poly star Staple Fibre in which the proportion of Polyster staple fibre was less than 70% by weight of total fibre contents; that as they had availed of exemption in respect of 2/30 PV 70/30 Yarn, the Addition Commissioner demanded the duty and imposed penalty holding that the Polyster Staple Fibre content was not less then 70%. the ld.Advocate, further submitted that they are not disputing the duty liability but the quantum of duty has to be worked out after determining the assessable value interims of decision of the Larger Bench of the Tribunal in the case of Sri Chakra Tyres Vs. CCE 1999(32) RLT 1 (CEGAT) as the price for which yarn was sold was to be considered as cum duty price. He finally mentioned that the duty liability will be only Rs. 2,98,039/- which has been debited by them in RG 23 A Part-II during the period from October 98 to April 99; that the letter to this effect had also been given by them to the Assistant Commissioner, and further, Shri Pokharna has mentioned about the debiting of duty in his statement dt. 21-4-99. We also heard Shri R.C. Sankhla, ld. DR.3. In Sri Chakra Tyres case, the Larger Bench of the Tribunal has held that when any demand of duty is created against an assessee, the original consideration received by an assessee of sale of the goods has to be taken as cum duty price for the purpose of demand. Accordingly the ld. Advocate, the applicants had already deposed the duty amount which would be due from them. We are thus of the vie that the ld.Advocate has made out a strong prima facie case in their favour for waiver of remaining amount of duty and entire amount of penalty.

Accordingly we waive the requirement of pre-deposit of remaining amount of duty and entire amount of penalty imposed on both the applicants and stay the recovery of the same during the pendency of the appeal. Both the Appeals are posted for regular hearing on 19-6-2001.