DHIREN GANDHI Vs. COMMISSIONER OF CENTRAL EXCISE, BANGALORE

JUDGEMENT

(1.) THESE two stay applications are filed for waiver of pre -deposit of the following amounts : - Stay/Appeal No.Duty (Rs.)Penalty (Rs.) St/659/09 E/968/094,03,982/ -(i) 4,03,982/ - (ii) 5000/ - St/660/09 E/969/0987,636/ -(i) 87,636/ - (ii) 2000/ -

(2.) HEARD both sides and perused the records.

(3.) THIS is second round of litigation. The appellant, herein, is the son of Proprietor of M/s. D&M Naturals and Fragrances on whom duty liability which was against proprietaryship, is fastened. In the first round of litigation, this Tribunal had remanded the matter to the Commissioner (Appeals) with the following directions : - - 3. We have carefully considered the submissions. The appellant has succeeded the business of his late father on 16 -9 -2003. The demands are said to be for an earlier period. Therefore, prima facie, in terms of the cited judgment, the appellant cannot be directed to pay the amounts. The appellants has a strong case on merits. Therefore the stay application is allowed. He is not required to pre -deposit the amounts in terms of the Commissioners order. Therefore the impugned orders are set aside and the matter remanded to the Commissioner (Appeals) to take up the matter on merits and decide the case within four months from the date of receipt of this order by following the Principles of Natural Justice. In the de novo proceedings, the Commissioner (Appeals) has taken up the matter and decided on merits but has not considered the view taken by the Bench on point that the demands cannot be fastened upon the appellant herein. The learned Counsels contention is further strengthened, as the show cause notice was issued for the period 2001 -02 in the year 2007. Even considering the liability as per the provisions of Central Excise Act, 1944, the liability to pay duty cannot be extended beyond 5 years. In both the cases, the show cause notice dated 30 -3 -2007 cannot demand duty for the period 1999 -2001 and also the current appellant cannot be fastened liability of proprietaryship firm of his deceased father. I find that the appellant has made out a prima facie case for grant of waiver of pre -deposit of the amounts adjudged by the adjudicating authority; as confirmed by the Commissioner (Appeals). Accordingly these two applications for waiver of pre -deposit of the amounts involved in this matter is allowed and recovery thereof stayed till the disposal of the appeals. (Pronounced and dictated in the open court)