LAWS(GJH)-2013-9-103

AIRCOMP ENTERPRISE Vs. UNION OF INDIA

Decided On September 12, 2013
Aircomp Enterprise Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner herein -original appellant has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 15 -7 -2013 issued on 16 -7 -2013, by which, the learned Tribunal has directed the petitioner herein -original appellant to deposit the amount of Rs. 20 lacs as pre -deposit. The investigation was carried out by the authority and thereafter the petitioner was directed to show cause as to why the clearance of the goods in the name of M/s. Aircomp Enterprise, M/s. Airgrow (India) and M/s. Airfil (India) and value thereof should not be clubbed with the clearance value of the petitioner and after clubbing clearance value for the period between 2006 -07 to 2010 -11, the petitioner was directed to show cause as to why the duty should not be recovered by invoking proviso to Section 11A(1) [now Section 11A(4)] of the Central Excise Act, 1944. That the petitioner was also directed to show cause as to why, appropriate interest should not be recovered and as to why penalty should not be imposed under Section 11AC of the Central Excise Act as well as Rule 25 of the Central Excise Rules, 2002. That the adjudicating authority after giving opportunity to the petitioner and others by order dated 15 -3 -2013 has confirmed the duty liability of Rs. 1,19,31,668/ - on the notice No. 1 i.e. petitioner No. 1 under the provisions. Section 11A(1) [now Section 11A(4)] of the Act and has also imposed penalty of like amount i.e. Rs. 1,19,31,668/ - on the petitioner under Section 11AC of the Act. The adjudicating authority has also passed an order of confiscation of 13 Air Compressors valued at Rs. 1,04,009/ -. By OIO the adjudicating authority has also imposed the penalty of Rs. 10000/ - on petitioner company and imposed penalty of Rs. 10 lacs each on the Directors.

(2.) SHRI Paresh Sheth, learned advocate for the petitioner has vehemently submitted that learned Tribunal has materially erred in directing the petitioner to make deposit of Rs. 20 lacs as pre -deposit. It is submitted that number of submissions were made before the learned Tribunal on merits in support of the case of the petitioner that there should be a waiver of 100% of the liability under OIO, however learned Tribunal has not considered the submissions on merits in detail. It is submitted that as such all the submissions made on behalf of the petitioner, against the order of OIO has not considered by the Tribunal in detail and as such no findings are given by the learned Tribunal on the submissions which were made on behalf of the petitioner.

(3.) WHILE passing the impugned order, it appears that the learned Tribunal has as such considered the order -in -original to satisfy itself with respect to prima facie case of complete waiver or not. The Tribunal has also observed that detailed arguments made on behalf of the appellant are required to be gone into detail, which can be done only at the time of final hearing of the case. Considering the aforesaid facts and circumstances of the case, it cannot be said that as such the learned Tribunal has committed any error and/or illegality in directing the petitioner -original appellant to deposit an amount of Rs. 20 lacs as pre -deposit, against the duty liability of Rs. 1,19,31,668/ - and penalty of the like amount.