Judgment:
1. These stay petitions are filed against Order-in-Original dated 3.1..2000 passed by Commissioner of Central Excise, Jaipur in which he has confirmed a demand of Rs.51,51,960/- on the appellants M/s Rajasthan Explosives and Chemicals Ltd. (RECL) and imposed a penalty of equivalent amount of them. The Commissioner in the same order has also imposed a penalty of Rs.25 lakhs on sh.Rajesh Jain, MD of M/s RECL and penalties of Rs.10 lakhs each on S/Sh. B.D.Agrawal, Vice President and A.K. Jain Vice President under Rule 209A of Central Excise Rules, 1944.
A penalty of Rs. 5 lakhs has also been imposed on Sh. Ganesh Mathur, MD of M/s H.N. Explosives under the same rule. This order is passed by the Commissioner on remand vide Tribunal Final Order No. A/837-40/99-NB dated 25.8.99 in which a direction was given to the commissioner to provide the appellants an opportunity of being heard in person and also to supply him with copies of the relied upon documents. The case proceedings relate to the allegation against M/s RECL that they wilfully and fraudulently suppressed the receipt of raw material used in the production of explosives and removed the same clandestinely without payment of appropriate Central Excise duty. Sh. J.S. Agrawal, advocate appearing for the appellants - M/s RECL, Rajesh Jain, B.D.Agrawal and A.K.Jain submits that though copies of the documents as directed by the Tribunal in the remand order were provided to the appellants and they were also given an opportunity of personal hearing but the submissions made by the appellants in relation to these documents have not been taken into consideration by the adjudicating authority in arriving at the findings in de novo proceedings. He further submits that the appellants M/s RECL is declared a sick unit by the BIFR. In the regard he is relying on the following cases and requests that the duty and penalty imposed on the appellants may be stayed:- i) Vijay Packagaing System Ltd. Vs. CC & CE, A.P., 2000 (39) RLT 501 (SC) iii) East India Cotton Mfg. Co. Ltd. Vs. CCE, New Delhi 1999 (32) RLT 465 (CEGAT) iv) Hindustan Wires Ltd. Vs. CCE, Delhi 2001 (43) RLT 277 (CEGAT-Del.) 2. The Ld. counsel for the appellants further relies on the Stay Order No. S/247-250/2000-NB dated 8.6.2001 passed by the Tribunal in another case of the same appellants in which they have been granted complete waiver of pre-deposit of the duty and penalty on the ground that the company had been declared sick industrial unit under Industrial Companies (Special Provisions) Act, 1985 and the scheme had also been sanctioned. In respect of the other three appellants it is submitted that they are only the officials of the Company and their meagre resources would not afford them to make the pre-deposit of heavy penalty amount imposed on them.
3. Sh. Mewa Singh, SDR appearing for the respondents, however, reiterates the findings of the adjudicating authority arrived at in his order and submits that the order is passed on detailed consideration of the allegation levelled against the appellants in the show cause notice. It is, therefore, submitted by the ld SDR that the appellants may be asked to make deposit of the duty and penalties confirmed on them.
4. We have carefully considered the submissions made before us. From a perusal of the Order-in-Original prima facie we find sufficient force in the submissions of the ld counsel for the appellants that it is not a detailed speaking order inasmuch as the Commissioner in the very second paragraph of his order has stated, "Facie of the case have already been discussed in detail in the impugned OIO No. 2/99 dated 8.3.99 however briefly stated the facts of the case are ........". The earlier OIO dated 8.3.99 of the Commissioner had already been set aside and, therefore, the facts and findings should have been discussed in detail in the present order without resorting to the earlier order.
Similarly, the findings under the "Discussion & Findings" portion of the order also appear to be cursory. On the financial position of the appellants, it is observed that the Tribunal in their earlier decisions cited supra, relying on the judgement of the Hon'ble Supreme Court in the case of M/s Vijay Packaging Systems Ltd. have consistently taken the views that the appellant units which are referred to the BIFR are not called upon to make the pre-deposit of the duty and penalty confirmed on them under Section 35F of Central Excise Act, 1944 and in the case of same party in another proceedings the Tribunal in their order dated 8.6.2001 have granted them the stay. In this view of the matter, we waive the pre-deposit of the duty and penalty imposed on M/s RECL and stay their recovery till the disposal of the appeal. Further, inasmuch as the main appellant party has been granted the stay, we grant the stay to the other appellants also on the same grounds.