EVEREST ROLLING PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE petitions are preferred by the petitioners against common order, dated 6 -7 -2009 passed by CESTAT [2009 (244) E.L.T. 91 (Tri. -Del.)] thereby directing the petitioners to deposit one third of the duty demanded along with interest thereon and one third of penalty. We find from the reading of the impugned order that the Tribunal has taken into consideration respective submissions of the parties in forming the prima facie view. It has also taken into consideration relevant case law stating the principles which are to be applied in deciding the applications relating to pre -deposit in terms of section 35F of the Central Excise Act. In its detailed discussion after analysing the respective merits of the cases of both the parties, the Tribunal has exercised its discretion holding that at this stage that the interest of justice would be served by directing the petitioners to pay one third of the amount of duty, interest and penalty. The main reasons in taking the aforesaid course of action and which inter alia, influenced the learned Tribunal are as under: -

(2.) IT is pertinent to note that we are at the stage of hearing of the stay application and, therefore, the scope of inquiry in relation to the merits of the case is limited to find out the prima facie case, if made out, by the appellant for grant of waiver in relation to pre -deposit in terms of Section 35F of the Central Excise Act, 1944. Bearing the same in mind, if one peruses the impugned order the same discloses findings regarding duty liability of the appellants based upon the analysis of all materials on record. Being so, the contention regarding absence of corroborative piece of evidence is totally devoid of substance. If the authority has refused to give much credence to the documents produced by the appellants in comparison to other materials placed on record by the department, it cannot be said that documentary evidence produced by the appellants has been totally discarded by the adjudicating authority while arriving at the finding relating to duty liability of the appellants.

(3.) THE accusation against the appellants was in relation to clandestine manufacture of goods and removal thereof with intention to evade the duty and the same is sought to be made good primarily referring to the materials pertaining to the consumption of electricity which is absolutely necessary required for production of the goods, supported and corroborated by other evidence.