ORDER
G.N. Srinivasan, Member (J).
1. The application for modification of our order made in E/S/680-681/02 in the above appeals dated 7-8-2002 has been filed.
2. The two appeals have been filed against the demand of duty of Rs. 6/37,58,428/- and penalty of equal amount plus another penalty of Rs. 50 lakhs. The case of the applicant-assessee S. Kumar’s Ltd., to put it in short, is that they are the process house getting the raw material namely grey cloth from other appellant by name S. Kumar Synfab Ltd. S. Kumar Synfab Ltd. have two sources of supply of grey cloth namely they themselves manufacture the grey fabric and they procure the grey fabric from outside. In respect of the latter source of supply, the price, it is contended before us, is less than the value of the grey cloth manufactured and supplied by S. Kumar Synfab Ltd. This value of the grey cloth is the bone of contention in these two appeals. When the application for stay E/Stay/680-681/02 came up for hearing, it was elaborately argued that such valuation adopted by the adjudicating authority for purpose of levy of duty on the final products was wrong. Other contentions have also been raised in the application. It was also argued elaborately on more than two occasions by the ld. Counsel. Our order dated 7th August was dictated in Court. It is the contention before us the assessees factory namely S. Kumar Ltd. has been transferred to SKM Fabrics (Amana) Ltd. The purchaser it would appear has filed an application for refund of duty from the Central Excise authorities and the same has been sanctioned to be taken to the Modvat account. It is submitted before us that since the purchaser SKM Fabrics (Amana) Ltd. had undertaken to bear the duty liability in case the appellant before us S. Kumar Ltd. loses the appeal before us there does not appear to be any loss to the department if the duty is appropriated or adjusted from the Modvat account of S. Kumar Fabrics (Amana) Ltd. It is also contended before us that when the department considered levy of duty it cannot be on the basis of the interest on receivables which should not be taken into account for purpose of levy of duty. He relies on the judgment of the Supreme Court GOI v. MRF, 1995 (77) E.L.T. 433. He also states that the administrative charges should not be taken into consideration for purpose of valuation and he relies on the judgment of the Tribunal in Cadbury Ltd. v. CCE, 2001 (135) E.L.T. 510. He also raised a contention that for purpose of valuation there cannot be a calculation of any amount twice for purpose of valuation. This adds to the liability unnecessarily on the assessee.
3. It is no doubt true that ld. Counsel has argued the case elaborately at the time of waiver application. He argued it more in the nature of arguing the appeal. When we dictated the order on 7th August/ the said argument was not reflected specifically in the stay order. It is a mistake on our part which we accept but yet when we take note of the amount to be deposited by any applicant on the prima facie consideration of the matter, we feel that it is not necessary to refer to each and every argument made by the Counsel and which we dispose of the application for stay Wipro Infotech Ltd. v. CEGAT, 1995 (75) E.L.T. 266. We have to deal with any point only when we dispose of the appeals. It is noted that whoever feels aggrieved can initiate legal proceedings before any forum which they consider appropriate taking note of time taken for decision from the forum. We are of the view even though we have not taken note of this specifically, the above submissions in our earlier order it does not mean that we have not taken note of the argument made by the Counsel. By way of repetition we would like to state that the stay application are heard with utmost attention which is considered by us to be due to the said application. We are conscious of the fact that jurisdiction given to the Tribunal in considering the waiver application is a very important aspect of the Central Excise litigation. We have in a prima facie view come to the conclusion that ends of justice would be met by directing the applicant before us to pay Rs. 2 crores.
4. In the matrix of the facts before us requesting the department to adjust the amount of duty payable by the assessee from the purchaser of the factory of the assessee is quite complicated. To us it appears this suggestion may not be advantageous to both parties.
5. During the course of the hearing of the instant application, we put it to the departmental representative whether he has any objection. He states candidly that the department has objection in point of fact in the communication written by the Commissionerate. We feel that under the circumstances, it is not necessary for us to accept to the pleas made persuasively by the ld. Counsel for the assessee. The only point is whether we have to grant more time or not. We shall grant the applicant to pay the said amount of Rs. 2 crores within one month from the receipt of this order, failing which the appeals of the assessee would stand dismissed.
6. Compliance on 23-6-2003.