KAYAN UDYOG LTD Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) Despite directions for affidavits were given, no affidavit-in-opposition has been filed to the present writ petition.

(2.) The petitioner-company owns a factory, where it used to manufacture tin containers and for that purpose used to purchase tin plates. It is an as-sessee under the Central Excise Act and had been extended the benefit of Mod-vat. A raid was conducted at the factory of the petitioner-company by the Excise authorities. In course of raid, various documents of the petitioners were seized. The petitioner asked for copies thereof. The petitioner was asked to take copies thereof, which the petitioner could not take for some reason or the other. Subsequently, a show cause notice was issued and in that it was indicated that the petitioner-company evaded excise duty. The reasons in support thereof had been indicated. It was mentioned that there is wide difference in relation to inputs in the Modvat account and in the profit and loss account and balance sheet. In the notice the petitioner was called upon to show cause why certain amount on account of duty, certain amount on account of penalty and certain amount on account of interest shall not be paid by the petitioner-company to the Revenue. The petitioner-company did not give any reply to the show cause. After calling upon the petitioner-company to give reply to the show cause notice for quite some time, and after appropriately postponing the date of adjudication; ultimately the authority concerned passed an order and adjudged that the petitioner-company is liable to pay roughly about Rs. 25 lakhs to the Revenue. Against that the petitioner-company preferred an appeal before the Tribunal. The Tribunal could hear the appeal provided the adjudged claim of the Revenue had been deposited. Nothing was deposited. The Tribunal directed the petitioner-company to deposit at least a sum of Rs. 10 lakhs. That was also not deposited. Subsequent thereto the petitioner-company filed an application seeking to review the order of the Tribunal by which the petitioner-company was asked to deposit a sum of Rs. 10 lakhs. In that the petitioners indicated that they are unable to pay either the tax assessed or the sum of Rs. 10 lakhs. Upon consideration of the said application the Tribunal extended time to deposit the sum of Rs. 10 lakhs without touching the amount of Rs. 10 lakhs. The petitioners did not deposit the amount of Rs. 10 lakhs. The Tribunal, accordingly, dismissed the appeal. The petitioners then, approached this Court by filing a writ petition and therein contended that the Tribunal ought to have had reduced the quantum of deposit from the sum of Rs. 10 lakhs for the reasons disclosed by them in their review application and in not doing so the Tribunal acted in a manner unwarranted. The Court accepted such contention and accordingly set aside the order of the dismissal of the appeal with a direction upon the Tribunal to reconsider the application of review filed by the petitioners. The Tribunal has reconsidered the application for review and again has rejected the prayer of the petitioners to reduce the quantum from Rs. 10 lakhs to any other sum. This writ petition challenges the said order. To my mind, in the review application petitioners had not indicated any reason for reducing the quantum of the deposit already fixed. Merely for the reason that the petitioners were incurring loss or their factory was closed at the relevant time is no ground for reducing the amount of deposit in relation to a tax liability already assessed. In the balance sheet, which showed that the petitioner-company had been incurring loss, it was indicated that they have a current asset of Rs. 66 lakhs in the form of loans and advances. If they had such an asset, which could be encashed only on a demand, there was no just reason not to deposit even the sum of Rs. 10 lakhs, which was arrived at by the Tribunal of its own by reducing the claimed amount from Rs. 25 lakhs. I, therefore, see no reason to interfere with the writ petition. The same is, accordingly, dismissed.

(3.) There will be no order as to costs. Interim orders stand vacated.