G.T.C. INDUSTRIES Vs. CCE, NEW DELHI

JUDGEMENT

(1.) In this application, the appellants have prayed for modification of the stay order passed by ld. Single Member on 8.6.2000. I have examined the application and have heard ld. Advocate, Sh. L.P. Asthana for the applicants. I have also heard ld. JDR, Sh. Swatantra Kumar for the Revenue.

(2.) As per the above stay order, this Tribunal had directed the applicants to deposit the entire duty amount of Rs.3,22,674.66 for purposes of Section 35F of the Central Excise Act. In respect of the penalty amounts, however, waiver was granted. I have perused the stay order. I find that, for purposes of stay, the Bench did not find any prima facie case. However, on the plea of financial hearships, the Bench noted that the appellants were a sick unit so declared by the BIFR. The Bench also took into account the interests of the Revenue. Apparently, by way of balancing the two factors, the Bench had directed deposit as above.

(3.) Today, ld. Advocate Sh. L.P. Asthana submits that the applicants were under physical control at the material time, that even in the show -cause notice the department accepted the factum of cut tobacco having been cleared from the applicant's factory and received by their franchisee namely, M/s M.P. Tobacco for utilisation in the manufacture of machine -rolled cigarettes and that, in terms of Exemption Notification No. 356/86 -CE dated 24.6.86, the duty liability would amount to Rs.868 @ 10 paise per Kg. (the quantity of cut tobacco so cleared being 8680 Kgs.). Ld. Advocate also reiterates the plea of financial hardships of the sick unit and also other grounds of the appeal in support of this application. Ld. JDR, on the other hand, submits that, on the merits of the case, the applicants have no prima facie case as already noted by the Bench in the stay order. He also raises a preliminary objection that the present application is in the nature of one for rectification of mistake and, therefore, cannot be maintained inasmuch as ROM applications will not lie against interim orders. Ld. JDR, therefore, prays for rejecting the present applicantion.