Judgment:
1. Through the present stay application, the appellants have sought waiver of pre-deposit of the entire duty amount of Rs. 10,32,307/- and equal amount of penalty as confirmed against them through the Order-in-Original dated 25-9-2001 by the Commissioner of Central Excise which has been challenged by them in Appeal No. E/2603/2001-NB.2. The perusal of the impugned order shows that the duty and penalty, detailed above, had been confirmed against the appellants on account of clandestine manufacture and removal of the goods i.e. M.S. Ingots during the period June, 1989 to August, 1990. The details of the goods manufactured and removed by them and their value had been given in Para 13 of the impugned order by the Commissioner.
3. The learned Counsel has contended while arguing the stay application, that the result of the experiment carried out regarding consumption of electricity in the production of one MT of MS Ingots on three different dates in the factory premises of the appellants, could not be relied upon without corroboration from other evidence and that the average consumption of electricity taken by the Commissioner is absolutely incorrect and untenable. He has also referred to the order of Asstt. Commissioner vide which he is said to have dropped the duty proceedings against the similar manufacturers of the M.S. Ingots. Even against the appellants, according to the learned Counsel, the recovery proceedings had been dropped for the subsequent period by the adjudicating authority by not relying upon the experiment report.
Therefore, the appellants have a very strong prima facie case for total waiver of pre-deposit of the duty and penalty amount.
4. On the other hand, the learned SDR has reiterated the correctness of the impugned order.
6. The bare perusal of the impugned order shows that the Commissioner has recorded detailed reasons for arriving at the conclusion that the appellants had suppressed the true production of the goods and clandestinely removed the same without payment of duty by maintaining dual sets of record and also by suppressing the production capacity of their unit. The Commissioner also got conducted experiments with regard to consumption of electricity in the production of one MT of MS Ingots by the appellants on 14-3-2001, 17-3-2001 and 21-3-2001 in the presence of their representatives and independent witnesses from the U.P.S.E.B.authorities. This was done by the Commissioner in terms of the direction given by the Tribunal while remanding the matter of the appellants on earlier occasion for fresh decision. Prima facie, we do not find any sufficient ground to disagree with the conclusion of the Commissioner. The fact that other similar manufacturers had been let off by the Asstt. Commissioner by dropping the recovery proceedings against them by not accepting the test experiment report, in our view, cannot be taken note of at this stage, so as to allow total waiver of the pre-deposit of duty and penalty amount. In our view, no prima facie strong case is made out in favour of the appellants for allowing the stay application.
7. However, keeping in view all the facts and circumstances of the case and the issue involved, we direct the appellants to make pre-deposit of Rs. 5 lakhs (rupees five lakhs only) on or before 28-4-2002. On making this deposit, the requirement of pre-deposit of the balance duty and the entire penalty amount shall stand waived and recovery stayed till the disposal of the appeal. It is made clear that if the appellants failed to comply with the terms of this stay order, their appeal shall become liable to be dismissed without any further reference to them under Section 35F of the Act.
8. To come up for reporting the compliance and further orders on 6-5-2002.