ORDER
S. Kalyanam, Member (J)
1. This is an application for waiver of pre-deposit of duty of Rs. 23,73,837.64 levied on the petitioner under the impugned order of the Collector of Central Excise, Coimbatore dated 25-6-1992.
2. Shri Natarajan, the learned Counsel for the petitioner submitted that proceedings were instituted against the petitioner on the basis of seizure of a private diary containing entries of transactions with third parties in regard to manufacture and clearance of detergent cakes, without payment of Central Excise duty, resulting in the impugned order. It was urged that the diary itself was brought into existence by the officers by coercion and threat and even though the petitioner sent a petition to the Collector on 26-2-1992 explaining the circumstances of threat and coercion the adjudicating authority has neither adverted to the same nor considered it in the impugned order. Therefore, it was urged that the order would stand vitiated by non-application of mind and non-consideration of a relevant piece of evidence. The petitioner also requested the Department to send the diary to the Govt. Examiner of questioned Documents, for opinion particularly as to whether the entries in the diary could have been brought into existence at one and the same time or could have been written on different dates and the Department prima facie after satisfying with the tenability of the request sent the diary for examination by the handwriting expert at Madras and the expert at Madras expressed his inability to give any opinion. The Department sent the same to the handwriting expert at Hyderabad, who also expressed his inability to give any opinion and the same was communicated to the petitioner on 20-2-1992 and the Department thereafter fixed the date of personal hearing initially on 2-3-1992 which was suo motu changed to 18-3-1993. The petitioner at this stage sought cross examination of various third parties on whose statements reliance has been placed in the show cause notice and this request was rejected. It was, therefore, contended that denial of opportunity to the petitioner to cross examine third parties on whose statements reliance has been placed would result in violation of the principles of natural justice vitiating the impugned order prima facie. The learned Counsel also pleaded financial incapacity stating that the petitioner was only a worker in a soap factory in 1987 and moved out to Coimbatore and started in a small way the manufacture of detergent cakes. The petitioner has also paid Rs. 75,000/- pending adjudication. The learned Counsel, therefore, submitted that in the light of the legal pleas urged by him the impugned order prima facie would not be sustainable and strenuously prayed and pressed for setting aside the impugned order at this stage itself.
3. Shri Jeyaseelan, the learned D.R. submitted that the petitioner has given inculpatory statements on 22-2-1990, 23-2-1990 and 7-3-1990 and if really any coercion has been brought on him he would not have given consistently those statements which were also attested by the petitioner’s brothers. The petitioner also did not complain to the Judicial Magistrate at the time of remand of any ill treatment of coercion on the part of the authorities. The petitioner voluntarily paid Rs. 75,000/- and even though this payment was challenged by the petitioner later in a writ proceedings in the High Court of Madras in W.P. No. 4536/91 and the Writ Court though found that the petitioner was not co-operating with the Department and directed the petitioner to co-operate with the Department in investigation, yet directed return of the amount. The Department preferred a writ appeal in W.A. No. 1315/91 and the Divisional Bench of the Madras High Court granted stay of that part of the order of the learned Single Judge directing the return of the amount in question. The learned D.R. further submitted that in respect of the plea of coercion it is for the petitioner to substantiate or probabilise it by seeking cross examination of the officer who recorded the statement and admittedly no such plea for cross examination was ever made. The learned D.R. submitted that at this interlocutory stage, prima facie the inculpatory statements of the petitioner would command acceptance along with the diary seized from the petitioner’s possession containing entries relating to unaccounted production and clearance of goods and a remand may not be warranted.
4. We have considered the submissions made before us, gone through the records and given our anxious consideration to the pleas raised before us very fervently by Shri Natarajan, the learned Counsel for the petitioner. We would like to note that we are only at the stage of interlocutory application and the primary question that we should address ourselves to at this stage is as to whether prima facie the impugned order is sustainable or not and whether the petitioner would suffer undue hardship if called upon to make the pre-deposit etc. As contended by the learned D.R. the petitioner has given inculpatory statements on three dates referred to supra and has also paid Rs. 75,000/- and the statements have been attested by the petitioner’s brothers themselves. We examined the diary seized from the possession of the petitioner which was also perused by the learned Counsel for the petitioner and prima facie it cannot be stated that the entries in the diary have been brought about by sheer coercion by the seizing officer as it were. No doubt we take note of the fact the request for cross examination of third parties had not been granted to the petitioner and the adjudicating authority has not considered the retraction of the statement of the petitioner dated 26-2-1990. Be that as it may, keeping all those factors in mind and also at the same time taking into consideration the fact that the petitioner has given more than one inculpatory statement attested by his brothers and did not make any complaint of coercion before the Magistrate at the time of remand and also having regard to the fact that the petitioner’s employees themselves have given statements against the petitioner which they have not admittedly retracted, we are inclined to think that at this interlocutory stage it cannot be said that the impugned order is not prima facie sustainable. Taking into consideration the financial position of the petitioner, viz. that he is not an income tax assessee and was only a worker in a soap factory in Madras in 1987 and also keeping in mind the fact that the Department does not have any specific information about the financial position of the petitioner, we direct the petitioner to pre-deposit a sum of Rs. 2,25,000/- (Rs. Two lakhs and twenty five thousand) in addition to the Rs. 75,000/- already deposited, on or before 30th June, 1993 and report compliance, subject to which pre-deposit of the balance duty would stand dispensed with, pending appeal. We also grant stay of recovery, pending appeal, subject to the petitioner complying with this order. Both parties agreed that the appeal itself could be listed thereafter for disposal since important legal questions arise for consideration in addition to revenue implication. It is open to both parties to seek fixation of a hearing after pre-deposit is made. The matter will be called on 30-6-1993 for reporting compliance.