VISAKA INDUSTRIES LIMITED REP BY ITS COMPANY SECRETARY K V SOORIANARAYANAN Vs. CUSTOMS EXCISE AND SERVICE TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) This writ petition has been filed praying that this Court may be pleased to issue a writ of Certiorarified Mandamus to call for the records relating to the stay order No. 813/2011, dated 8.12.2011, on the file of the Customs, Excise and Service Tax Appellate Tribunal, (South Zonal Bench), Chennai, the first respondent herein, and quash the same and consequently, direct the first respondent to hear the appeal filed by the petitioner, in Appeal No. E/423&422/09, without insisting on the petitioner making the pre-deposit and to pass appropriate orders, on merits and in accordance with law. It has been stated that the petitioner is a holder of Central Excise Registration No. AAACV7263KXM003. The petitioner is a manufacturer of Asbestos Cement Sheets, classifiable under the sub-heading 6811 of the Central Excise Tariff Act, 1985, using raw materials, like, cement, fly ash, cotton, wood pulp, etc.

(2.) It has been further stated that the petitioner was issued with a show cause notice, dated 7.4.2008, proposing to demand an amount of Rs. 15,37,57,177/-, towards the Central Excise Duty on the Asbestos Cement Sheets cleared by the petitioner, during the years 2003-04 and 2004-05, on the ground that they have wrongly availed exemption Notification No. 6/2002, dated 1.3.2002, during the above periods, by accounting bogus/excess fly ash receipts.

(3.) It has been further stated that, based on the investigation conducted, in view of the statements obtained from M/s. Natesan Engineers and Contractors and M/s. Natesan construction products and on the basis of the information provided by the Superintending Engineer, M/s. Mettur Thermal Power Station, and as per the procedures laid down by the Government, for the purpose of availing the exemption notification, the second respondent had come to the conclusion that the petitioner had not used the required percentage of fly ash i.e., 25% or more in manufacturing the Asbestos Cement Sheets. Therefore, a show cause notice had been issued proposing recovery of duty amount, along with interest and also proposing imposition of penalty, under Section 11AC of the Central Excise Act, 1944. The petitioners had stated, in its reply, inter alia, that the allegations made in the show cause notice were based on presumptions and assumptions. The ratio of the raw materials used in the manufacture of Asbestos Cement Sheets is as per the rules and regulations, applicable to the petitioner. The fly ash used in the manufacture of Asbestos Cement Sheets had been purchased from the various Thermal Power Stations in the States of Tamil Nadu and Andhra Pradesh, either by allotment orders made in favour of their company, or from other allottees of fly ashe, through regular transporters.