LAXMI ENGG. WORKS AND SHRI Vs. CCE, DELHI

JUDGEMENT

(1.) These two stay applications arise out of appeals bearing Nos.t/1136/2001 -NB(V) filed by M/s.Laxmi Engg. Works and E/1100/2001 -NB(D) by Bhupinder Jain (appellant no.2) against the common order in original dated 20.2.2001 passed by the Commissioner confirming the duty demand and imposing penalty of the amounts detailed therein. The appellants have sought the waiver of those amounts for the purposes of hearing of their appeals, in these stay applications.

(2.) While arguing the stay applications, the learned counsel has contended that the impugned order in original of the Commissioner is prima facie legally not sustainable as the same had been based on surmises and conjectures. The slip pads, registers and loose papers allegedly recovered from the factory premises were disowned by the appellants and entries therein could not be relied upon by the learned Commissioner for determining the production and clandestine removal of the goods as those did not stand proved on record at all. The testimony of Sohan Lal, Supervisor could not be legally used against the appellant as he was never submitted for cross -examination during the adjudication proceedings, for testing his veracity. There was no material on the record to prove the clandestine manufacture and disposal of the goods by the appellants who were only working as job workers. He has also submitted that even the alleged confessional statement of Bhupinder Jain (appellant No.2) was taken under duress and threat of arrest one day earlier to the date of marriage of his son which was fixed for 30.11.95 and that he thereafter retracted that statement and also complained to the Commissioner that his statement was taken under threat and by coercion. the learned counsel has drawn our attention to the copies of the letters and telegram placed by the appellants on the file in that regard. The counsel has also argued that the proceedings were drawn intially against the appellants only on the basis of interception of one tempo xxxxxx carrying the copper wire rods on 29.11.95 near Shahdara Flyover, but those proceedings so far had not attained finality and the matter is till pending before the Commissioner (Appeals).

(3.) Regarding imposition of penalty under Section 11 -AC of the Central Excise Act the learned counsel has contended that the same could not at all be ordered as the provisions of the said section were not on the statute during the period in which the evasion of duty on the part of the appellants had been alleged. Similarly, according to the counsel, extended period of limitation could not be invoked prima facie as there was no concrete allegations and proof of suppression of facts by the appellants who were paying the duty on the goods manufactured and cleared by them as per record from the factory.