Veer Vijay Silk Mills and A.S. Shah Vs. Commissioner of Customs and - Court Judgment

Excerpt:
1. the above stay applications came up for consideration on 16.1.2004, 4.2.2004 and 24.2.2004 but were adjourned on the request of the applicants. the matter was posted on 30.3.2004 again. the applicants filed an application for adjournment stating that the applicants' advocate was unable to attend the hearing. this is in spite of notice.non appeared for the applicants. perused the records and heard the dr.2. briefly the facts are that the applicant, m/s. veer vijay silk mills, is a processor of manmade fabrics. the officers of central excise visited the premises of the applicant and, in the presence of one shri ashwin shantilal shah (the second applicant), a partner of the firm, conducted a search and recovered four challans indicating that excisable goods were removed from the mill without payment of duty. the partner shri ashwin s. shah admitted that processed fabrics were removed without payment of duty.3. the total duty evaded was worked out to be rs. 1,43,128/-, the lower authority confirmed this amount, imposed equal amount of penalty on the firm and imposed a penalty of rs. 10,000/- on the partner. he adjusted rs. 1,00,000/- deposited by the applicant towards the duty liability.the commissioner (appeals) upheld the order of the lower authority.4. the present application by the firm is to waive pre-deposit of balance amount of duty of rs. 43,128/- and penalty of rs. 1,43,128/-. i observe that the applicant failed to make out a strong prima facie case in its favour as evident from the records of the case. it is a case of allegation of clandestine removal of excisable goods. the merits will have to be gone into at a later stage. i therefore direct the applicant to deposit the balance amount of duty and the entire penalty pending disposal of the appeal, within 12 weeks from the date of this order.5. similarly, i direct the applicant shri ashwin shantilal shah to deposit the penalty of rs. 10,000/- within 12 weeks from the date of this order. if the applicants fail to deposit the duty and penalty by 1.6.2004, the appeals will be rejected without further notice.

Judgment:
1. The above stay applications came up for consideration on 16.1.2004, 4.2.2004 and 24.2.2004 but were adjourned on the request of the applicants. The matter was posted on 30.3.2004 again. The applicants filed an application for adjournment stating that the applicants' advocate was unable to attend the hearing. This is in spite of notice.

Non appeared for the applicants. Perused the records and heard the DR.2. Briefly the facts are that the applicant, M/s. Veer Vijay Silk Mills, is a processor of manmade fabrics. The officers of Central Excise visited the premises of the applicant and, in the presence of one Shri Ashwin Shantilal Shah (the second applicant), a partner of the firm, conducted a search and recovered four challans indicating that excisable goods were removed from the Mill without payment of duty. The partner Shri Ashwin S. Shah admitted that processed fabrics were removed without payment of duty.

3. The total duty evaded was worked out to be Rs. 1,43,128/-, The lower authority confirmed this amount, imposed equal amount of penalty on the firm and imposed a penalty of Rs. 10,000/- on the partner. He adjusted Rs. 1,00,000/- deposited by the applicant towards the duty liability.

The Commissioner (Appeals) upheld the order of the lower authority.

4. The present application by the firm is to waive pre-deposit of balance amount of duty of Rs. 43,128/- and penalty of Rs. 1,43,128/-. I observe that the applicant failed to make out a strong prima facie case in its favour as evident from the records of the case. It is a case of allegation of clandestine removal of excisable goods. The merits will have to be gone into at a later stage. I therefore direct the applicant to deposit the balance amount of duty and the entire penalty pending disposal of the appeal, within 12 weeks from the date of this order.

5. Similarly, I direct the applicant Shri Ashwin Shantilal Shah to deposit the penalty of Rs. 10,000/- within 12 weeks from the date of this order. If the applicants fail to deposit the duty and penalty by 1.6.2004, the appeals will be rejected without further notice.