SAMRUDDHI INDUSTRIES Vs. CESTAT, MUMBAI

JUDGEMENT

(1.) This petition is directed against order passed under Section 35F of the Central Excise Act by Customs, Excise and Service Tax Appellate Tribunal on 9th June, 2009, [2009 (242) ELT 434 (Tri. - Mum.)] while entertaining an appeal against order passed by the Commissioner of Central Excise, Nagpur, whereby the Tribunal granted waiver of only penalty but not the duty demanded.

(2.) The facts which are material for deciding this petition are as under : The petitioner is a manufacturer of MS Pipes. A contract of constructing water supply and sewage system at MIHAN at Nagpur had been allotted to M/s. Nagarjuna Construction Company Ltd. M/s. Nagarjuna Construction Company Ltd. has engaged the petitioner as supporting manufacturer to manufacture and supply MS (SAW) pipes from their factory in MIDC Area at Butibori. The petitioner sought exemption from Central Excise duty and therefore, obtained a Certificate from the Collector under Notification No. 6/2006, dated 1st March, 2006, issued by Government of India, Ministry of Finance. In view of this certificate the petitioner claimed exemption from payment of excise duty from respondent No. 2 Commissioner, Central Excise. By his original order dated 29th December, 2008, the commissioner confirmed the demand of Central Excise duty at Rs. 5,44,70,146/- comprised of basic excise duty of Rs. 5.28 crores, Rs. 10.57 lacs towards Education Cess and Rs. 5.28 lacs towards Secondary and Higher Education Cess. The Commissioner also ordered recovery of interest on the said amount and imposed a penalty of an equal sum on the petitioner. He also slapped penalties of Rs. One Lac each on M/s. Nagarjuna Construction Company, principal contractor and Maharashtra Airport Development Company ("MADC" for short), which had awarded the contract. A penalty of Rs. Five Lacs was also imposed on a partner of the petitioner.

(3.) The petitioner preferred an appeal against this order before the Customs, Excise and Service Tax Appellate Tribunal under Section 35B of the Central Excise Act. It applied to the Tribunal seeking stay to the orders passed and also sought waiver of requirement under Section 35F of the Act of pre-deposit of duty, interest and penalty. By its impugned order the Tribunal waived the requirement to deposit the amount of penalty only and directed that the duty amount should be deposited within a period of twelve weeks and directed that the petitioner should report compliance by 7-9-2009. Aggrieved thereby the petitioner is before this Court.