ORDER
Mrs. Archana Wadhwa
1. The prayer in the Application is for dispensing with the condition of predeposit of the duty amount of Rs. 72,87,919.00 (Rupees seventy-two lakh eighty-seven thousand nine hundred nineteen) confirmed against the applicants vide the impugned Order of the Commissioner of Central Excise Calcutta -I, and Rs. 72,87,819.00 (Rupees seventy-two lakh eighty-seven thousand eight hundred and nineteen) imposed upon them.
2. After hearing Shri S.K. Roychowdhury, learned Advocate for the applicants and Shri V.K. Chaturvedi, learned S.D.R. and after going through the impinged Order, we find that an amount of Rs.31.00 lakh (Rupees thirty-one lakh) (approx.) has been confirmed against the applicants/appellants on the allegation of finding of clandestine removal, which is based upon the figures as reflected in the applicants’s Balance Sheet. As per the applicants, such inflated figure was given in the Balance Sheet so as to secure loans from the Financial Institutions by presenting a rosy picture to them. He also submits that there is no other evidence on record to show the clandestine manufacture and removal of the goods. Another quantum of Rs. 41.72 lakh (Rupees forty-one lakh seven-two thousand) (approx.) has been confirmed on the ground that the applicants have cleared the goods for home-consumption in the guise of exports inasmuch as they have failed to show the documents covering the exports in question. The contention of the applicants/appellants is that all the shipping Bills were produced before the original adjudicating authority showing the exports in question. However, we find that the Commissioner has observed that even if the photocopies of Shipping Bills for exports are treated as valid documents, such Shipping Bills covered only a quantity of the exports, leaving behind the substantial quantities having no coverage of proof of exports. We find that the above two issues are arguable and contentious. A final view can only be taken after hearing both sides at length and after going through the evidences produced by both sides.
From the financial position of the applicant firm, we find that the same is not that bad so as to make it undue hardship for the applicants to deposit a partial amount of duty as a pre-condition of hearing of their appeal under the provisions of Section 35F. Accordingly, taking the entire facts and circumstances of the case into consideration, we direct the applicants/appellants to deposit an amount of Rs. 7.00 Lakh (Rupees Seven lakh) only within a period of twelve weeks from today.
Subject to deposit of the above amount, the condition of deposit of the balance amount of duty and penalty stands waived and its recovery stayed during the pendency of the appeal. Matter to come up for ascertaining compliance and for disposal of the appeal on 19.10.2001.
Dictated in the open Court.