ORDER
Gowri Shankar, Member (T)
1. This is an application for stay of pre-deposit of Rs. 62,022.61 demanded by the Collector of Central Excise (Appeals). Along with the stay application, an application has also been filed to refund this amount which he says has been deposited in the PLA account in response to coercive methods of the Department.
2. Shri A.S. Shishodia, Advocate says that the reason for demand of duty was that the authorities had held the applicant was not entitled to take deemed Modvat credit on non-ferrous metal in various forms purchased from the market. The reason advanced was that the inputs were clearly recognisable as non-duty paid. He says that the order did not disclose that there has been a specific finding that goods were non-duty paid and stated that in the similar circumstances, this Tribunal has granted stay.
3. Shri B.D. Bhagat, DR says that there is no evidence that the amount has been paid by the applicant as in response to coercive measures and therefore, the stay application is infructuous.
4. The amount in question has already been paid by entry in PLA of the applicant on 29-11-1994. The Advocate is not able to show any evidence that there was any compulsion or force in getting this debit entry made except a remark in the PLA “duty is debited under protest”. In my view this remark does not establish that the amount has been paid as a result of coercive measures. The Advocate’s claim that the amount was paid in order to avoid seizure of plant and machinery in the factory, is totally unsubstantiated. There is not a single letter or other evidence to show that the department was pressurising the applicant to pay the amount. The fact that there is an entry that amount having been paid under protest is in inconsistency having been paid willingly. It cannot be said payment made under protest is tantamount to payment made under coercion. Indeed one might argue that if the applicant had sufficient presence of mind forthwith to make this entry in the Personal Ledger Account, it would have had sufficient presence of mind to resist the payment under coercion. Therefore the conclusion is it is difficult to [accept] that payment was made under coercion.
5. Since the entire amount has been paid and not shown to be paid under coertion, the stay application becomes infructuous. The position in the case cited by the applicant in Mohan Engg. Works v. CCE – 1994 (73) E.L.T. 161 would be distinguishable. The application is therefore, dismissed as infructuous. The Misc. application is therefore, also dismissed.