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TMI Blog2010 (5) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 without considering some of the grounds which go to the root of the matter while ordering the deposit of the entire duty demanded under the said order, and therefore, there is case for reconsideration of the matter. 3. By order dated 13th July, 2009 this Tribunal had disposed of the applications for stay filed in the above appeals rejecting the prayer for waiver of pre-deposit in relation to the duty demanded under the impugned order, though the amount in relation to the interest and penalty was waived. 4. The total duty demanded under the impugned order is Rs. 6,20,62,878/- against appellants M/s. Surya Boards Ltd., Rs. 2,16,14,572/- against M/s. Surya Vikas Plywood Pvt. Ltd., Rs. 42,42,439/- against M/s. Donear Décor Pvt. Ltd. and the same after deducting the amount of Rs. 9 lakhs already paid by M/s. Surya Boards Ltd., Rs. 4,50,000/- paid by M/s. Surya Vikas Plywood Pvt. Ltd. and Rs. 1,50,000/- by M/s. Donear Décor Pvt. Ltd. was required to be deposited within 10 weeks from the date of the order passed by the Tribunal. 5. Being aggrieved, the appellants approached the Hon'ble Delhi High Court and under the orders passed by the Hon'ble Delhi High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants to cross-examine the witnesses and particularly who had prepared the report regarding such co-relation. 7. On the other hand it is the case of the department that the Tribunal while disposing of the stay applications had considered all the relevant issues and has come to a correct finding which do not require re-consideration in any manner. As regards the financial hardship is concerned, though the same might not have been dealt with in detail in the earlier order, yet the analysis of materials record in the order dated 13th July, 2009 disclose that the said aspect was clearly taken note of by the Tribunal while ordering the deposit of the duty demand under the impugned order while waving the interest and penalty amount. 8. Para 4 of the order dated 13th July, 2009 discloses reference to the grounds which were canvassed on behalf of the appellants. The said para 4 of the order reads thus :- "The learned advocate for the applicants has submitted that, the challenge in the appeals is fourfold. Firstly, the respondent erred in applying, without any basis, the ratio of multiply of 2.49 to the valuation amount alleged to have been suppressed on account of alleged u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciding the matter on 13th July, 2009. The fact that those grounds were raised earlier has not been seriously disputed by the respondents. 12. Coupled with above factors, it cannot be disputed that the issue relating to the financial hardship was not dealt with elaborately, nor consideration thereof was stated in so many words in the order while disposing the matter on 13th July, 2009. Indeed, there was no reference to the said aspect of the matter. 13. We are aware that we are dealing with an application for re-consideration of the matter. However, in view of the orders passed by the Hon'ble High Court of Delhi including the order dated 15-9-2009 in WP(C) No. 11687/2009 giving liberty to the appellants to raise the issue of undue hardship, etc. by moving an application for reconsideration of the matter, it will be necessary to deal with the matter afresh while considering the effect of all the above contentions. Besides, in the facts and circumstances of the case we do find this case to be fit for reconsideration of the matter. 14. In Sunitadevi Singhania Trust v. U.O.I., reported in 2009 (233) E.L.T. 295, the Apex Court while dealing with the subject relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d without any proof. This aspect having not been considered, other materials which have been undisputedly considered without taking note of the effect of these grounds, the same has resulted in great prejudice to the appellants. 18. Indeed, as regards the similarity in price in relation to the product manufactured by the appellants during the relevant period with that of similar type of the products manufactured by other manufacturers during the relevant time, there is absolutely no material to find any difference as such. At least the respondents have not been able to point out any such material. Obviously, there appears that there was no attempt to investigate in this regard. Similar is the case in relation to the price of the product after 2005. The matter being related to the accusation of under-invoicing of the product by the appellants it was certainly necessary for the department to collect evidence regarding the price structure of such products with reference to similar products manufactured by other manufacturers and to ascertain the difference in that regard. This was indeed relevant in view of the fact that the allegation of under-invoicing is admittedly based upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod or even after 2005 to ascertain whether the invoices issued by the appellants could be said to be under priced or there has been under-invoicing as sought to be alleged by the department. Equally as regards the collection of the cash and utilization thereof for purchase of raw material, the conclusion in that regard has been arrived at based on circumstantial evidence and not on the basis of any direct evidence in that regard. The circumstantial evidence comprises of data retrieved from lap top and the statements of some of the traders. At the same time the adjudicating authority has totally discarded statements of various other traders without disclosing any justification for the same. As regards the data, undoubtedly the government examiner of data was not made available for cross-examination. It is true that request in that regard was made at the fag end of the proceedings and, in fact, on that ground itself the contention in that regard was sought to be rejected while deciding the matter on 13th July, 2009. However, taking into consideration the above factors it cannot be disputed that such cross-examination of the data examiner was of great importance and certainly denial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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