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TMI Blog2010 (11) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs. 13 lakhs deposited by the said firm, towards the above demand of duty. He also imposed penalty equal to duty on the above firm under Rule 25 of the Central Excise Rules, 2001/2002. The adjudicating authority imposed penalties of Rs. 1 crore each on Shri Rakesh Jain and Shri Pinkesh Jain (partners of the firm) and a penalty of Rs. 25 lakhs on M/s. Enkay Texofood Industries Limited under Rule 26 of the Central Excise Rules, 2001/2002. The present applications seek waiver and stay in respect of these amounts. 2. Arguing for M/s. Umaji Overseas (partnership firm) and its two directors, the learned counsel submits that the appeals filed by these parties are liable to be allowed by way of remand at this stage. In this connection, he submits that many of the relied-upon documents are yet to be supplied to these parties and, therefore, these parties have not been able to make an effective counter to the allegations in the show-cause notice. In this connection, the learned counsel has invited our attention to a series of letters which represent correspondence between Umaji Overseas and the Commissioner or the investigating agency. Some of these letters indicate that the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority advised the advocate for M/s. Umaji Overseas to approach DGCEI for obtaining whatever documents they were yet to receive. According to the learned counsel, this letter of the Additional Commissioner would amply prove that there were documents which were yet to be supplied to M/s. Umaji Overseas. On a perusal of all the records referred to by the learned counsel and the learned JCDR, we are of the prima facie view that M/s. Umaji Overseas cannot complain that they did not receive copies of the relied-upon or non-relied-upon documents from the department inasmuch as they clearly acknowledged receipt of copies of such documents as evidenced by the documents produced by the JCDR. The plea of negation of natural justice, raised by the learned JCDR, is, therefore, not sustainable at this stage. 4. Both sides have made submissions on merits as well. It appears from the records that the demand of duty on M/s. Umaji Overseas is in respect of raw materials indigenously procured by them under CT-3 certificates. The basis of this demand is that these raw materials were diverted instead of being used in the manufacture of export-goods in the EOU of M/s. Umaji Overseas. The case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sharani Garments. He has also submitted that the attempts made by M/s. Umaji Overseas to obtain copies of relevant documents from the Commissioner of Central Excise, Hyderabad were in vain. Learned JCDR has referred to the relevant allegations in the show-cause notice, pertaining to clearances made by M/s. Umaji Overseas to M/s. Asharani Garments. We have also seen the submissions made by the appellant vis-a-vis these allegations contained in the show-cause notice. Prima facie, M/s. Umaji Overseas have not succeeded in rebutting the Revenue's case that no goods were cleared by M/s. Umaji Overseas to M/s. Asharani Garments. If that be so, there is substance in the allegation of the department that the raw materials which were claimed to have been used in the manufacture of goods supplied to Asharani Garments were diverted without being used in such manufacture. In their attempt to disprove some of the allegations of the department, M/s. Umaji Overseas pleaded that some of the raw materials procured indigenously were sent to job-workers and that the finished goods produced by the job-workers were duly received in the EOU and subsequently exported. The investigating agency visited the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted clearances valued at about Rs. 2.54 crores as having been made by the appellant-EOU to M/s. Asharani Garments. This would prima facie show that finished goods valued at about Rs. 9.24 crores were not supplied by appellant-EOU to M/s. Asharani Garments. M/s. Umaji Overseas have not shown that the raw materials which were claimed to have been used in the manufacture of export-goods (valued at about Rs. 9.24 crores) allegedly supplied to M/s. Asharani Garments were not diverted. Proceeding on this basis, we estimate, for the present purpose, the amount of duty to be pre-deposited by M/s. Umaji Overseas. This is the amount of duty on the raw materials which were claimed to have been used in the manufacture of export-goods valued at about Rs. 9.24 crores which were claimed but not shown to have been supplied to M/s. Asharani Garments. This would amount to 27% of the duty demanded by the Commissioner, which works out to Rs. 9.99 crores. 7. In the stay application filed by M/s. Umaji Overseas, there is an averment that their factory was closed in August, 2002 and that they are not in a position to pre-deposit any amount of duty. There is also a reference to "balance sheet en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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