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Gilloram Gauri Sankar Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1994)(70)ELT389Tri(Kol.)kata
AppellantGilloram Gauri Sankar
RespondentCollector of Central Excise
Excerpt:
.....after hearing both the sides we would like to observe that this court has got no powers to grant stay in respect of redemption fine.provisions of section 35(f) of the central excises & salt act, 1944 are reproduced as under:- "where in any appeal under this chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: provided that where in any particular case, the collector (appeals) or the appellate tribunal is of opinion that the deposit of duty demanded or penalty levied.....
Judgment:
1. M/s. Gilloram Gauri Sankar, Baidyanath-Deoghar-814112 (Bihar) has filed an appeal being aggrieved from Order No. 21/MP/84 dated 26-5-1984 passed by the Additional Collector of Central Excise, Patna. The said appeal was presented in the Registry on the 27th day of June, 1984. A stay petition duly supported with an affidavit was also presented in the Registry on the 9th day of August, 1984. Shri S. Mukhopadhyay, the learned Advocate has appeared on behalf of the appellant. He has requested this Court for the grant of stay in respect of fine in lieu of confiscation at Rs. 60,000/- (Rupees sixty thousand) only and also penalty of Rs. 25,000/- (Rupees twenty-five thousand) only under Rule 173Q. He has pleaded for the grant of stay and has stated that it is a case of undue hardship. He has referred to an earlier judgment of this Bench in the case of M/s. Meena Jewellery v. Collector of Central Excise, Calcutta reported in 1983 (14) E.L.T. 1976 (Tri.). He has pleaded that this Court had granted stay in respect of redemption fine.

He has submitted that there is hardly running cash of Rs. 15,000/-. He has offered to deposit a sum of Rs. 5,000/- in cash in respect of penalty and fine in lieu of confiscation.

2. In reply, Shri A.K. Sarkar, the learned SDR has opposed the grant of stay. He has pleaded that he has no objection if the appellant is directed to deposit 50% of the penalty amount. He has submitted that he has got no information as to the financial status of the appellant. In reply, Shri Mukhopadhyay, the learned Advocate had again requested for grant of stay and pleaded that if the stay is not granted it will be a case of undue hardship.

3. After hearing both the sides we would like to observe that this Court has got no powers to grant stay in respect of redemption fine.

Provisions of Section 35(F) of the Central Excises & Salt Act, 1944 are reproduced as under:- "Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." 4. A simple reading of the section shows that under the Central Excises & Salt Act, 1944 this Court has been empowered to grant stay in respect of duty or penalty only. The argument of the learned Advocate as well as the earlier judgment of this Court in the case of Meena Jewellery v.Collector of Central Excise, Calcutta do not help the appellant in any way. In an earlier judgment of the West Regional Bench in the case of National Harbour Launch Services v. Collector of Customs, Bombay reported in 1983 (12) E.L.T. 0617 (Tribunal), it was held that Section 124E of the Customs Act, 1962 provides for stay only in respect of duty or penalty and there being no explicit provision for recovery of redemption fine, appeal for such stay in respect of confiscated goods must be rejected. Undoubtedly, this Court enjoys inherent powers to grant stay against recovery of fines in view of judgments of the Hon'ble Supreme Court in the case of ITO Kennore v. Md. Kunhi reported in 71 ITR 815. This judgment was followed by the Hon'ble Patna High Court in the case of Pooranmal Kantia v. ITO reported in 98 ITR 39. In the instant case we do not find any justification in exercising its inherent power for the grant of stay in respect of fine in lieu of confiscation. Accordingly, appellant's request for grant of stay in respect of redemption fine at Rs. 60,000/- (Rupees sixty thousand) only is rejected. The appellant has not taken even the slightest care in the filing of balance sheet and other evidence in respect of his financial position. However, in respect of penalty of Rs. 25,000/- (Rupees twenty-five thousand) only, we feel that if the stay is not granted to the appellant the appellant shall suffer undue hardship. The appellant has filed stay petition duly supported with an affidavit sworn before a Magistrate. The bona fide of the appellant should not be doubted. The revenue has not filed any counter affidavit or has not produced any evidence as to the appellant's financial status. Accordingly, we direct the appellant to deposit (Rupees ten thousand) only in cash within six weeks from the date of this order. For the remaining amount of Rs. 15,000/- the appellant is directed to furnish a bank guarantee of Rs. 15,000/- to the satisfaction of the lower authorities within six weeks from the date of this order. The appellant is further directed to report the compliance of this order to the Registry. In case the appellant fails to comply with the terms of this order the stay shall stand automatically vacated.


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