RAIGAD CASTINGS LTD Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE applicants have sought for the modification of the orders dated 20.5.98 and 1.7.99 on the stay application and miscellaneous application for modification of the stay order, and regarding the pre -deposit ordered in the stay application to review or modify the same and rehearing the stay application in terms of the evidence produced by the applicants maybe expedited.

(2.) THE applicants in the stay application and modification application have pointed their grave financial crisis to make a pre -deposit of any amount and also the facts that the company is a sick unit, and already has various other debts and liquidity problems, which is supported by the latest balance sheet. The stay application and miscellaneous application were considered by the Tribunal in the absence of the counsel and the applicant. The applicants have filed an application on 3.7.98 to the BIFR contending that it is a sick undertaking a copy of which is produced. It was registered under Section 15 of the SICA 1986 as per letter dated 28.9.98 of the BIFR and the applicants were heard on 3.3.99. The registered letter and hearing notice are produced. Under Section 22 of the Act, no recovery proceedings under any law in force can continue against them held by Supreme Court in in the case of Cram Panchayat v. Vallabh Glass Works and Ors. and of Delhi High Court in the case of Swaraj Mazda v. UOI. Their factory is under closure and Rs. 1,05,93,466.98 is deemed by them to the MSEB as on 31.3.99 as per the demand notice dated 21.4.99. The hardship on the applicant is very grave and it is impossible for them to pre -deposit the said amount of Rs. 4 lakhs as per the stay order.

(3.) SHRI J.N. Pochkanwala, the learned Sr. Advocate for the applicant, and Shri A. Ashokan, JDR for the department, have argued on the application. Their contention, the documents produced, the stay order, and the order dated 1.7.99 on the earlier miscellaneous application are considered. As per the stay order, which is dated 13.5.98/20.5.98 in paragraph 5 of the order, financial hardship and the contention of the applicants that their case has been referred to the BIFR is considered, and observed that no paper regarding the same is filed, even though auditors report that the company is a sick industrial unit within the meaning of Sick Industrial Act. The profit and loss account for the year ended 31.3.99 produced as that time was considered and then as against the duty amount Rs. 16,16,124 and penalty of Rs. 15 lakhs, the pre -deposit is ordered for Rs. 4 lakhs only. Two months time was given to deposit the same. In the order dated 1.7.99/10.8.99 on the miscellaneous application for modification of the stay order it is user (sic) that the Ld. Counsel appearing for the applicant on that date has not convinced the bench regarding the reasons for the absence of the party or the counsel on the date when stay application was heard. Paragraph 3 of the order points out that - -"repeated request was made to give one more chance to argue the stay application, which if acceded, it would in effect result in every stay application required to be heard one or more times. If one chance, why not two or more - - -The stay application cannot be heard again and again because of the default of the Advocate.