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TMI Blog1991 (2) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Officer. Various documents and other materials were seized. Two statements were recorded under Section 14 of the Central Excises & Salt Act, 1944 (hereinafter referred to as the said Act). The first was a confessional statement by one Sunil Agarwalla, one of the directors of the petitioner to the effect that goods valued at Rs. 10 lakhs had been manufactured and cleared during the period August 1986 to 12th January 1987 without keeping any accounts in respect thereof. It was also stated that such clandestine clearance was made only on the basis of challans for delivery of the goods and that the said challans had been destroyed once accounts had been settled. 3. A statement was also recorded by the manager of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd removed during the period August 1985 to January 1987, as indicated in annexure 'B' should not be demanded from them under Section 11A of the Central Excises & Salt Act, 1944 and (ii) A penalty should not be imposed on them for contravention of the provisions of Rule 9(1), 52A, 53, 173F, 173G(1), 173G(4) and 226 of the Central Excise Rules, 1944 under Rules 9(2), 52A, 173Q and 226 ibid." 5. On the basis of the documents recovered from the premises it was found that goods of the value of Rs. 6,62,618.38 for the period October 1986 to January 1987 had been removed without payment of excise duty. On the basis of the confessional statement of the director to the petitioner a differential value of suppressed clearance for the period August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated at concessional rate of Rs. 3,750/-. (iv) The petitioner was running at a loss and would face undue hardship if the payment of duty and penalty was not waived. 8. By an order dated 10th July, 1989 the Tribunal disposed of the application for stay by granting waiver of pre-deposit and realisation of the amount pending decision in the Appeal subject to the petitioner - (i) Depositing Rs. 15,000/- in cash in addition to the amount already deposited towards the duty liability; and (ii) Depositing Rs. 5,000/- in cash towards penalty liability within 8 weeks from the date of receipt of the order; In the said order it was recorded as follows :- "Both the sides submitted that since one of the points however, is regarding rate of duty app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement for pre-deposit the Division Bench found that on the admitted facts of the case - "There was full justification for the exercise of the power vested in the Tribunal to dispense with the requirement of pre-deposit inasmuch as the case of the appellant was fully covered by the decision of a Special Bench of the Tribunal and still to insist upon the deposit of duty demanded and penalty levied would indubitably cause undue hardship to the appellant". 12. The third case relied upon by the petitioner is a decision of the Government of India on a Revisional Application in the case of In re : Dhampur Sugar Mills Ltd. reported in 1990 (46) E.L.T. 400. In that case the petitioner had cleared the goods without determining the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal had gone into all the questions raised including the question of undue hardship. Reliance has been placed on the decision of the Supreme Court in State of U.P. and Ors. v. Maharaja D.P. Singh reported in AIR 1989 SC 997 and also the decision of the CEGAT in the case of Jayashree Insulators Ltd. Rishra v. Collector of Central Excise reported in 1987 (28) E.L.T. 279. (iii) that there was admittedly a dispute regarding the rate of duty applicable as recorded in the order of the Tribunal. 14. I am of the view that the last contention of the respondents must be accepted. The petitioner had itself submitted to the transfer of the case to the Special Bench at New Delhi. 15. However, I am also of the prima facie view that the rate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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