Judgment:
Per M.V. Ravindran (Oral)
This stay petition is filed by the assessee for waiver of pre-deposit of the following amounts:-
(i) Duty: Rs. 17,01,966/-
(ii) Interest on the above amount u/s 11AB of the CE Act, 1944
(iii)Penalties: (i) Rs. 17,01,966 u/s 11AC and (ii) Rs. 2,00,000/- under Rule 25 of CE Rules, 2002
(iv) Penalty of Rs. 1,00,000/- on Shri M.S. Pillai, Manager u/r 26
2. The amount was confirmed by the adjudicating authority on the ground that this amount is payable by the assessee on the amount of freight collected by them from the Indian Railways and not informing the department. The assessee had filed an appeal against such an order. The learned Commissioner (Appeals), in his Stay Order Nos.11 and 12/2009-(G)CE dated 30.06.2009, has directed the assessee to deposit an amount of Rs. 2 lakhs and waived the pre-deposit of the balance amounts involved. The assessee deposited an amount of Rs. 1 lakh and sought for a modification, which was denied by the learned Commissioner (Appeals). The learned Commissioner (Appeals) dismissed the appeals for non-compliance of the order of the pre-deposit.
3. The learned Counsel submits that the non-inclusion of the freight charges allegation is totally incorrect. It is his submission that they have paid the freight charges from their pocket and only have collected a small amount from the Railways, which was included in the assessable value of final products. It is his submission that the Show Cause Notice is totally time barred as the assessee has been filing Returns regularly with the authorities.
4. The learned JDR, on the other hand, would submit that the assessee had not disclosed the receipt of the freight element and the agreement entered with the railway authorities. It is her submission that the details of collection of freight charges had to be reported by them when the officers visited the premises. Hence, there is a clear charge of suppression of the value.
5. We have carefully considered the submissions made at length by both sides and perused the records. We find that the learned Commissioner (Appeals) has directed the assessee to deposit an amount of Rs. 2 lakhs. Out of this, a lakh of rupees has been deposited by them. We find that the appeal has been dismissed only for non-compliance of the order of the pre-deposit. We find that the issue regarding limitation has not been considered by the adjudicating authority in his OIO. Also, as regards the agreements, the claim of the assessee that they had provided all the documents before the adjudicating authorities has not been addressed in proper perspective by the learned Commissioner (Appeals) as he has not decided the appeal on merits. Considering the question of limitation and also in the facts and circumstances of the case, we find that a further deposit of Rs. 50,000/- is ordered to be made by the assessee, for hearing and disposing of the appeal by the learned Commissioner (Appeals). The assessee is directed to deposit an amount of Rs. 50,000/- (Rupees fifty thousand only) within four weeks from today and report compliance of the same to the Commissioner (Appeals) on 02nd August, 2010 and the learned Commissioner (Appeals), on such compliance being reported, may take up the appeals for disposal and dispose the same by a reasoned order. The stay and appeal are disposed off in the above terms. Non-compliance of the above mentioned order will automatically entail dismissal of the appeal by default.