ORDER
P.G. Chacko
1. In this stay application, the applicants have prayed for waiver of pre-deposit of the amount of penalty of Rs. 2 lakhs imposed on them by the Commissioner under Rule 209A of the Central Excise Rules as per Order dated 28.12.99.
2. Examined the records and heard both sides.
3. Ld. Advocate, Sh. R.L. Lamba has reiterated the grounds of this application as well as those of the appeal. He submits that there is no specific finding against the applicants by the adjudicating authority to call for any penalty under Rule 209A. He submits that the allegation raised in the show-cause notice against the applicants has not been established. The only finding against them is that the applicants and M/s G.T.C. Industries Ltd. had adopted a modus operandi for evasion of duty by suppressing material facts and making mis-statements and that the applicants had made an attempt to cover up clandestine removal of cut tobacco by M/s GTC Industries. The goods actually received by the applicants under cover the Challan also. The goods were entered in the appropriate register maintained by the applicants and extract thereof was taken by the officers of Central Excise who searched their factory. That document was one of the annexures to the show-cause notice. In view of these facts, there was no warrant for a finding that the applicants had made an attempt to cover up clandestine removal of cut tobacco by M/s GTC Industries. There was no evidence whatsoever to show that any cut tobacco was received by the applicants under cover of the aforesaid challan. Therefore, the finding of the adjudicating authority against the applicants was not supported by any evidence and therefore there was no warrant for imposition of penalty under Rule 209A. Ld. DR has opposed these submissions. He has reiterated the findings of the adjudicating authority and has prayed for rejecting the application and directing the applicants to deposit the entire amount of penalty.
4. I have examined the submissions. I find that the penalty was imposed under Rule 209A. That provision of law requires that any person against whom the provision is sought to be invoked should have reason to believe that the excisable goods in relation to which the provision is sought to be invoked are liable to confiscation under the Act or the Central Excise Rules. On a perusal of the impugned order, I find that the Commissioner has no cared to enquire into the question whether the present applicants had any such belief in respect of any cut tobacco. Their consistent case appears to be that they have never had anything to do with cut tobacco in relation to the above challan, and that they only received packing material, which they duly entered in appropriate register and utilised subsequently in manufacturing activity. In this view of matter, the applicants appear to have a prima facie case. But, having regard to the detailed facts and circumstances of the case, I do not think that the prima facie case in strong enough to call for complete waiver of deposit. I, therefore, direct the applicants to deposit an amount of Rs. 50,000/- for purposes of Section 35F of the Act within a period of six weeks from today and report compliance on 17.5.2001.
