2004 (96) ECC 491 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(C)

Shri V.K. Agrawal, Member (T) and Shri P.G. Chacko, Member (J)

Pasupati Spg. & Wvg. Mills Ltd.

Versus

CCE, Delhi-III

E/S/03/04-NB(C) in Appeal No. E/03/2004-NB(C)

[Arising out of Order-in-Appeal No. 503/AKG/GGN/2003 dated 2.10.2003 passed by the Commissioner of Central Excise (Appeals), Gurgaon]

Stay Order No. S/142/04-NB(C), dt. 3.3.2004, Certified on 23.3.2004

Waiver of Pre-deposit

Applicant manufacturer of man made yarn -- Issue of availability of benefit of Notifications No. 53/91-CE and 31/93-CE involved -- Applicants have not made out a prima facie case for waiver of pre-deposit of the entire amount of duty confirmed against them -- Taking into consideration the financial hardship and the loss accumulated by them, applicants be directed to deposit a sum of Rs. 20 lakh.

PRESENT :

Shri M. Chandersekharan, Sr. Adv. for the appellant.

Shri U. Raja Ram, JDR for the respondent.

Case Cited :

Metal Box India Ltd. v. CCE, Mumbai, 2003 (155) ELT 13 (SC).............................. [Para 3]

Per : V.K. Agrawal

This is an application by M/s. Pasupati Spg. & Wvg. Mills Ltd., for waiver of pre-deposit of Central Excise duty amounting to Rs. 1,14,18,907.

2. Shri M. Chandersekharan, learned Sr. Advocate, submitted that the applicants manufacture man-made yarn and the issue involved is whether the benefit of Notification No. 53/91-CE Sl. No. 14 (a) or 14 (b) and subsequent Notification No. 31/93 Sl. No. 47 (a) or 47 (b) would be available to them or not; that the Appellate Tribunal, in their own case, as reported in 2002 (140) ELT 118, has dismissed their appeal denying them the benefit of Notification No. 53/91 in view of the Explanation to the Notification; that the appeal, filed by them, has already been dismissed by the Hon'ble Supreme Court in Civil Appeal Nos. 2335-2336 of 2002 dated 12.4.2002. The learned Sr. Advocate, however, mentioned that the appellants had filed a Writ Petition No. 5873/93 in Punjab & Haryana High Court which had admitted their Petition and passed an order on 21.5.93 staying past recoveries; that the Hon'ble Supreme Court also, while dismissing their appeals, has made it clear that it would be open to the High Court to dispose of the Writ Petition but uninfluenced by dismissal of these appeals. He, finally, submitted that out of total demand, confirmed under the impugned order, a demand of Rs. 39,22,325 pertaining to the period from June 1992 to Nov. 1992 is the subject-matter of the Writ Petition in the Punjab & Haryana High Court; that the remaining amount of duty may not be ordered to be deposited by them as their financial condition is very precarious as aggregate loss has reached the figure of Rs. 6632.02 lakh which is more than the net-worth of the applicant company.

3. Opposing the prayer, Shri U. Raja Ram, learned DR, submitted that not only the Appellate Tribunal, but even the Hon'ble Supreme Court has dismissed their appeal claiming the benefit of the Notification No. 53/91; that the Hon'ble Supreme Court has also held in the case of Metal Box India Ltd. v. CCE, Mumbai, 2003 (155) ELT 13 (SC) that the protection under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 is not available regarding payment of pre-deposit under Sec. 35F of the Central Excise Act.

4. We have considered the submissions of both the sides. The applicants have not made out a prima facie case for waiver of pre-deposit of the entire amount of duty confirmed against them. Taking into consideration the financial hardship and the loss accumulated by them, we direct the applicants to deposit a sum of Rs. 20 lakhs (Rupees twenty lakh) within eight weeks from today. On complying with this direction, there shall be waiver of pre-deposit of the remaining amount of duty and the recovery of the same will remain stayed during the pendency of the appeal. The matter will come up for reporting compliance on 13.5.2004.

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