JUDGMENT
Jyoti Balasundaram, Member (J)
1. The above application for waiver of pre-deposit of duty of Rs. 5,22,657/- and penalty of amount equal to duty arises out of the order of the Commissioner (Appeals) upholding the order of the Adjudicating authority who has confirmed the demand on the ground of shortages of finished goods as well as inputs and confirmed the allegation of clandestine removal. The ld.counsel’s submission before the Authority below is that there was no actual shortage but only (SIC) burning loss during the manufacture of rough forged items and it is their submission that their stock does not tally only for the reason that they have not accounted for the loss. The plea of financial hardship was raised by the applicants and in this support they have produced the balance sheet for the year 1999-2000 before us showing the loss.
2. The prayer for waiver and stay of recovery is opposed by the ld.D.R. who submits that neither before the Authorities below nor before the Tribunal have the appellants satisfactorily shown that it was only the non accountal burning loss.
3. On hearing both sides and perusing the records, we find that the applicants have not satisfactorily explained prima-facie that the shortage is only due to non accountal of burning loss particularly in view of the fact that the Authority below has seen the records and found that the burning loss was already reflected in the applicants’ accounts. Having regard to the totality of the facts and circumstances of the case including the plea of financial hardship, we direct the applicants to deposit a sum of Rs. 2,00,000/- (Rupees Two lakhs) (in addition to the amount of Rs. 25,271/-) either by deposit of cash or by way of reversal in the modvat account within a period of four weeks from today and on such deposit/reversal, the requirement of pre-deposit of balance of duty and the penalty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice.
4. Compliance to be reported on 27.11.2001.
(Dictated in Court)