Full Judgment
2. Mr. Bharati Chavan, the Ld. JDR, for the Department, however, opposed this application pointing out that the impugned order having been received in Sept. 1993, could have been attended to, when the Proprietor was alive and he died in July, 1994. Moreover, even after his death, delay has taken place, since the appeal came to be filed only in Dec. 1994.
3. After hearing both sides, we find that in this case there is no dispute that the firm was a proprietary concern and the proprietor's illness also appears to be genuine, since he is reported to have succumbed to his illness. When the proprietor of the firm died and the matter is to be looked after by his legal heir, things would not be in normal condition, till they settle down. Hence we are inclined to exercise our discretion in condoning the delay. After condoning the delay, we proceeded to hear the stay application.
4. The applicants are required to deposit a sum of Rs. 1,48,90,274.71 towards duty and a penalty of Rs. 5 lakhs vide order-in-original no.
V-adj (59) 15-2-/92, dated 22-6-1993. During the adjudication proceedings, they are reported to have already deposited a sum of Rs. 34 lakhs, leaving balance of Rs. 1.14 crores towards duty and penalty of Rs. 5 lakhs. The appeal is to be continued by the legal heir viz.
the wife of the proprietor. Shri Parakh, pleads that they are interested in paying off the duty amount. However, their liquidity position is not sound because of the fact that the factory is closed and the machineries are lying idle. The widow has appointed her son by general power of attonery, who will dispose of the property and make the payment towards the duty. However, they could not find ready cash of Rs. 1.14 crores to meet the duty demand. In the circumstances, he would plead for grant of stay and waiver of pre-deposit of the amounts or allow a longer period for deposit of the duty.
5. Ms. Charati Chavan, however, opposed the stay application and pleads that cash deposit of the duty amount is required to be made.
6. After hearing both the sides, we find that the issue covered by this order relates to alleged evasion of duty, which call for detailed examination of all the evidence. There are no prima facie grounds pleaded for unconditional stay. In the circumstances, the entire amount of duty is required to be secured by way of cash deposit. However, we appreciate that there is some problem in their liquidity position, on account of the closure of the factory. Having regard to these aspects, we allow a period of five months from the date of receipt of this order to deposit the balance of duty amount either in wholesome or in instalments, as may be convenient to them. They should report compliance, after making the deposit within the stipulated period. The Department is at liberty to keep a watch over the payment of the deposit ordered and if there is any default, they are at liberty to move the Tribunal. On making the deposit of the duty amount, there shall be stay and waiver of recovery of the penalty amount.