2011 (12) TMI 434 - AT - Central Excise

Waiver of pre-deposit of duty - Show Cause Notice was issued to the applicant treating the amount of Rs. 5.5 crores as profit earned from sale of excisable goods which were cleared without payment of duty - Amount surrendered to ITA - Held that - in the balance sheet nowhere applicant disclosed that the amount in question was surrendered to the Income Tax authorities is in respect of sale of excisable goods - in absence of any evidence that the amount surrendered to the Income Tax department is in respect of the goods cleared without payment of duty or in respect of under valuation of goods prima facie the applicant has a strong case for waiver of pre-deposit of duty interest and penalty - Stay granted.

Summary

Issues:
1. Application for waiver of pre-deposit of duty, interest, and penalty.
2. Allegations of goods cleared without payment of duty.
3. Applicant's contentions regarding surrender of amount to Income Tax authorities.
4. Revenue's argument of non-disclosure and lack of cooperation during investigation.
5. Tribunal's decision in a similar case.
6. Prima facie assessment for waiver of pre-deposit.

Analysis:
The case involved an application for waiver of pre-deposit of duty, interest, and penalty amounting to Rs. 6,58,17,427/- by the applicant, engaged in manufacturing bulk drugs liable to excise duty. The applicant had surrendered an amount of Rs. 5.5 crores during an Income Tax Department survey, which was later treated as profit earned from the sale of excisable goods cleared without payment of duty. The applicant contended that the surrendered amount was not related to goods cleared without duty payment or undervaluation, emphasizing discrepancies in their records due to unaccounted investments and material enhancements. The applicant cited a Tribunal decision and a High Court order in support of their case.

The Revenue, however, argued that the applicant failed to disclose crucial information during investigation, including the receipt of reactors used in manufacturing finished goods and the names of sundry dealers related to the surrendered amount. The Revenue contended that the surrendered amount included receivables from dealers and was rightfully demanded. The Tribunal noted that the Revenue's case relied on the assumption that the surrendered amount was related to the sale of excisable goods, which was not explicitly disclosed in the applicant's balance sheet. Referring to a similar case precedent, the Tribunal found in favor of the applicant, considering the lack of evidence linking the surrendered amount to duty evasion or undervaluation.

Based on the facts and circumstances, the Tribunal concluded that the applicant had a strong case for waiver of pre-deposit, as there was no evidence of duty evasion or undervaluation. Consequently, the pre-deposit of dues was waived, and the recovery was stayed pending the appeal, allowing the applicant's stay petition. The decision was dictated and pronounced in open court by the Tribunal.