TMI Blog2014 (5) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners have made out a strong prima facie case. It may be that the petitioners were required to pay certain excise duty which according to the Department was payable but not paid. That by itself would not ipso-facto amount to any fraud, collusion or any wilful misstatement or suppressing of fact with a view to evading payment of duty. - Pre deposit order modified to the extent of reduction in amount - Decided partly in favour of assessee. - Special Civil Application No. 13619 of 2011 - - - Dated:- 17-11-2011 - Akil Kureshi and Sonia Gokani, JJ. Shri Shreedharan, Sr. Advocate with A.P. Nainawati, for the Petitioner. Shri Varun K. Patel, for the Respondent. ORDER Heard learned counsel for the parties at length for final disposal of the petition. 2. This petition is directed against an order of Customs, Excise Service Tax Appellate Tribunal (for short CESTAT) dated 15-6-2011 and also subsequent order passed by the same Tribunal on 16-8-2011. These orders pertain to the requirement of pre-deposit pending appeal before the Tribunal. In an application for stay filed by the petitioner, the Tribunal directed that the petitioner should deposit 25% of the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not discharged its full liability of excise duty on the manufacturing activities carried out on the natural marbles. With respect to agglomerated marbles, the case of the Department appears to be that even prior to entries of Chapter dated 1-3-2010, the activities carried on by the petitioner amounting to manufacturing activity and therefore, even prior to entries of Chapter Note of 1-3-2010, in Chapter 68, the excise duty was leviable. 6. After issuing the different show cause notices, the Commissioner as an adjudicating authority confirmed the duty demand by an order dated 30th April, 2010. He demanded the principal excise duty of total of Rs. 27,59,95,034/- [Rupees Twenty Seven Crores Fifty Nine Lacs Ninety Five Thousand Thirty Four and Zero Paise only]. He also imposed the penalty under Section 11AC of the Act equal to the principal sum of excise duty demanded. He imposed, separate penalty of Rs. l Crore on the partners of the petitioner-firm and of Rs. 25 Lacs on the authorized signatory of the firm. It is this order dated 30th April, 2010 of the Commissioner Central Excise, Vapi which the petitioner has challenged before the Tribunal. Pending the appeal, petitioner moved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this stage of pre-deposit, this Court would not interfere with the Tribunal s discretionary exercise of powers. He submitted that adjudicating authority has examined all aspects in detail and found that petitioners are not paying excise duty though required under the law. He further submitted that Tribunal has given detailed order and directed the petitioners to pay 25% of the basic duty ignoring the penalty imposed. 10. Counsel referred to the decision of Apex Court in case of 2009 (245) E.L.T. 161; wherein in context of the deduction under Section 80-IA of the Income Tax Act, it was held that marble slabs and blocks go through various stages which would amount to manufacturing and therefore, deduction under Section 80-IA of the Income-tax Act cannot be denied. Counsel submitted that Apex Court in case of Arihant Tiles Marbles (P) Ltd. (supra) explained its previous decision in case of Aman Marbles. 11. Having heard the learned counsel for the parties and having perused the orders on record. At the outset, we may note that for waiver of pre-deposit either in part or in entirety, the Courts have looked into the question of undue hardship by examining the financial capaci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,59,95,034/-. Such order of the adjudicating authority is in appeal before the Tribunal. Various issues have been raised before the Tribunal. Pending the appeal, some of these issues were considered for the purpose of examining whether the petitioners have made out a strong prima facie case as to waive the entire pre-deposit. 13. We do not wish to pass any final judgment on any of these issues since the appeal is pending before the Tribunal and in any case such issues have not been discussed and debated before us in its entirety for the purpose of any final adjudication. Suffice it to note that adjudicating authority after issuing show cause notices to the petitioner and taking into consideration the materials on record has confirmed certain duty demand. It cannot be stated that the entire duty demand is wholly baseless or without any foundation. Whether the process carried out by the petitioners on natural as well as agglomerated marbles would amount to manufacturing activity and therefore, would attract excise duty are the questions yet to be finally decided by the Tribunal. Despite decision of Apex Court in Aman Marbles with respect to natural marbles the activities of cuttin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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