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TMI Blog2013 (10) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... during that year, the total clearances of the specified goods were only worth Rs. 57,00,000/-. During the previous financial year i.e. during 2010-2011, according to the income tax returns of the appellant company, their total clearances of specified goods worth Rs. 27,00,000/-. For these reasons during the period of dispute, the factory was not having Central Excise registration. On 19/08/11, the Jurisdictional Central Excise officers visited this unit by surprise and at that time they intercepted a tempo parked just outside the factory with 396 DVDs being cleared, and there was no accompanying invoice with the goods. On checking with the stock of the finished goods, 271 DVDs goods were found unaccounted. Statement of the driver was recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant company, penalty of Rs. 10,000/- on Shri Alex John and penalty of Rs. 5,000/- on Shri Gangasagar, Driver of the tempo. The tempo from which the goods were seized, were also ordered to be confiscated with option to be redeemed a fine of Rs. 5,000/-. On appeal being filed against the Assistant Commissioner's order by the appellant company, Shri Manish Nathani, Shri Alex John and Shri Gangasagar, the Commissioner (Appeals) set aside the confiscation of the raw material but remaining portion of the order was upheld. Against this order of the Commissioner (Appeals), these four appeals have been filed alongwith stay applications. The prayer in these stay applications is for waiver of penalty and stayed the recovery thereof till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision Pvt. Ltd. for denying the SSI exemption to them during 2011-2012 and demanding duty. He, therefore, pleaded that the impugned order upholding penalty on the appellants is not sustainable, that the appellants have strong prima facie case in their favour and hence the requirement of pre-deposit of penalty may be waived for hearing of their appeals and recovery thereof may be stayed till the disposal of the appeal. 4. Shri S.K. Gupta, the learned DR, opposed the stay applications by reiterating the findings of the Commissioner (Appeals) and emphasised that Shri Alex John in his statement dated 19/08/11 had clearly stated that the goods were being cleared without invoices, that where the clearances were under invoices, the same were be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during 2011-2012 as on 19/08/11 had crossed Rs. 4.5 crores. But this statement has been retracted by Shri John on 22/08/11 and surprisingly, the Managing Director Shri Manish Nathani was not even asked any question on the point as to whether he agreed or disagreed with the statement of Shri Alex John. There is no seizure of any documents from the unit showing that their clearances during 2010-2011 or 2011-2012 were beyond the threshold limit for SSI exemption. Up till now no show cause notice has been issued to the unit for denying SSI exemption to them and demanding duty. In view of this, I am of prima facie view that during the period of dispute, the appellant unit was not even required to obtain Central Excise registration and was not ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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