* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.E.A.C. No.1/2011, 2/2011 AND 3/2011
% Date of Decision: 22.03.2011
C.E.A.C. No.1/2011
Shri Rakesh Kumar Garg .... Appellant
Through: Mr.Chandra Shekhar and Mr.Saurabh
Upadhyay, Advocates
Versus
Commissioner of Central Excise Delhi - I .... Respondent
Through: Mr.Satish Kumar, Sr. Standing
Counsel.
AND
C.E.A.C. No.2/2011
Shri Santosh Kumar Garg .... Appellant
Through: Mr.Chandra Shekhar and Mr.Saurabh
Upadhyay, Advocates
Versus
Commissioner of Central Excise Delhi - I .... Respondent
Through: Mr.Satish Kumar, Sr. Standing
Counsel.
CEAS NOs.1, 2 & 3/2011 Page 1 of 7
AND
C.E.A.C. No.3/2011
Shri Devi Dass Garg .... Appellant
Through: Mr.Chandra Shekhar and Mr.Saurabh
Upadhyay, Advocates
Versus
Commissioner of Central Excise Delhi - I .... Respondent
Through: Mr.Satish Kumar, Sr. Standing
Counsel.
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA
1. Whether reporters of Local papers may be No
allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in No
the Digest?
A.K. SIKRI, J. (ORAL)
*
C.M. Appl. No.5377/2011 in C.E.A.C. No.1/2011
C.M. Appl. No.5364/2011 in C.E.A.C. No.2/2011
C.M. Appl. No.5379/2011 in C.E.A.C. No.3/2011
Allowed, subject to all just exceptions.
The applications are disposed of.
C.M. Appl. No.5376/2011 in C.E.A.C. No.1/2011
C.M. Appl. No.5363/2011 in C.E.A.C. No.2/2011
C.M. Appl. No.5378/2011 in C.E.A.C. No.3/2011
The appellants have filed these appeals against the order of
CESTAT challenging the imposition of penalty. As per the orders of the
CEAS NOs.1, 2 & 3/2011 Page 2 of 7
CESTAT, penalty in the sum of Rs.5.00 crores is to be paid in each of
these appeals. Out of these, a sum of Rs.2.00 crores each already
stands paid, which was deposited by the appellants at the time of
hearing of the appellants before the CESTAT. Along with these
appeals, the appellants had moved applications for stay, which were
dismissed by the orders dated 13th January, 2011 inter alia observing
that the appellants were in robust financial health and therefore there
was no reason to grant stay. The appellants were given time to
deposit the balance amount of penalty within four weeks and this
deposit was made subject to the outcome of these appeals. Appeals
are now coming for hearing, after show cause notice, on 12th May,
2011. The appellants have challenged the aforesaid interim order by
filing SLPs, which stand dismissed by the Supreme Court. In these
applications, appellants are seeking limited prayer. It is submitted that
time of four weeks granted by this Court to deposit the amount be
extended. Prayer made is that appellants be permitted to deposit the
amount of Rs.3.00 crores in 10 monthly installments of Rs.30.00 lakhs
each. The appellants have stated that no doubt the appellants are
solvent in the sense that they have lots of immovable properties but at
the same time insofar as liquidity is concerned, the appellants have
suffered huge losses leading to cash crunch and are unable to make
payment of penalty in lump sum within the time granted by this Court.
CEAS NOs.1, 2 & 3/2011 Page 3 of 7
It is also stated in the applications that for showing their bonafides,
members of the appellants’ family are agreeable to give security of the
property standing in the name of M/s.Narsi Solvex (P) Ltd. having its
registered office at 1918, Dimpir Nagar, Mathura, (U.P.). The Directors
of the said company are brother and sister of the appellant and who
are also appellants in these appeals. The details of property are
mentioned in paragraph 7 of the application, which is a land
admeasuring 2.5625 acres and freehold land.
Learned counsel for the respondent opposes the prayer made in
these applications. He has raised twin submissions in this behalf,
namely, (i) four weeks’ time granted to the appellants expired long ago
and applications are filed at a belated stage when the appeals
themselves are coming up for hearing on 12th May, 2011; (ii) after the
orders were passed declining the stay and said order is confirmed by
the Supreme Court dismissing the special leave petitions, there is no
reason to vary the same.
Insofar as the first objection of learned counsel for the
respondent is concerned, from the facts stipulated above, it is obvious
that the appellants had not accepted the order dated 13th January,
2011 as they had preferred special leave petitions against that order.
No doubt, special leave petitions have been dismissed, but at the same
time, there is no reason to file these applications earlier in view of the
CEAS NOs.1, 2 & 3/2011 Page 4 of 7
filing of the said SLPs and pendency thereof. Therefore, we do not
find any force in the submission of the learned counsel for the
respondent in challenging the filing of the application on the ground of
delay.
Insofar as second objection is concerned, it should be borne in
mind that this Court is not modifying the order for reduction in the
amount of penalty to be paid by the appellants. That order remains
intact. Effect thereof is that the appellants have to comply with the
order dated 13th January, 2011 vide which they were asked to deposit
the entire balance amount of penalty. The only concession which the
appellants are seeking is to deposit this amount in installments. We
are of the view that cogent reasons are given by the appellants for
extension of time and to deposit the amount in installments. Needless
to mention, had such a prayer been made even on 13 th January, 2011,
the same would have been given adequate consideration on that date
also. Therefore, we don’t agree with the contention of the learned
counsel for the respondent that merely because on an earlier occasion
four weeks’ time was granted to the appellant, that precludes the
appellants from making a prayer for fixing the installments in remitting
the amount in question. The applications, therefore, need to be
considered on their own merits.
CEAS NOs.1, 2 & 3/2011 Page 5 of 7
Since, for the reasons stated in the application, which are taken
note of in brief above, we are inclined to fix installments for making the
payment. We may observe that even if the payment is made in
installments, the Revenue does not get prejudiced in any way
inasmuch the Revenue would be receiving the amount in question,
though over a spread of time. However, at the same time, we are of
the view that the installments should start from the month of January
2011 when the order in the said applications were passed by this
Court. This will take care of even the alleged delay in preferring these
applications. In the circumstances, we direct as under:
(i) The payment of Rs.3.00 crores by each of the appellants shall be
made in 10 equal installments of Rs.30.00 lakhs each and
starting from January 2011.
(ii) Since we are already in the month of March 2011, a sum of
Rs.90.00 lakhs in each of the appeals has become due which
shall be deposited by the appellants with the respondent by 31st
March, 2011. Installments from April 2011 onward shall be paid
by 15th of each month, i.e., 15th April, 2011; 15th May, 2011 etc.
and the last installment in this manner shall be given by 15 th
October, 2011. All the appellants shall file affidavit of
undertaking before this Court whereby they will give an
undertaking to adhere to the aforesaid schedule. It is made clear
CEAS NOs.1, 2 & 3/2011 Page 6 of 7
that in case, there is a default even in making the payment of
one installment, the concession given by this order stand
forfeited and entire balance amount shall become due and
recoverable by the respondent.
(iii) The appellants shall also file their affidavits as well as affidavits
of the concerned persons giving security of the property
particulars whereof are mentioned in paragraph 7 of the
application. The said security shall be to the satisfaction of the
Registrar of this Court.
The applications are disposed of in the aforesaid terms. Matter is
fixed before the Registrar on April 4, 2011 for accepting the security
and affidavits.
Copies of this order be given Dasti to the counsel for the parties.
A.K. SIKRI, J.
MARCH 22, 2011 M.L. MEHTA, J.
Dev
CEAS NOs.1, 2 & 3/2011 Page 7 of 7