ORDER
G.N. Srinivasan, Member (T)
1. This is an application for waiver of duty of Rs. 19,59,482/- plus interest under section 11AB and penalty of equal amount under section 11AC read with rule 9(ii) and/or rule 173Q and/or rule 26. The application also seeks to stay the recovery of fine of Rs. 5,00,000/- in lieu of confiscation of goods under rule 173Q.
2. The assessee is a well-known textile industry manufacturing varieties of textile goods. It is manufacturing these goods for more than 125 years. The assessee entered into a contract with M/s. Shivram Associates, Coimbatore, in and by which the assessee sold goods worth Rs. 7.5 crores some time in the year 1997. The goods were manufactured bearing the brand names “Shiv Bulls Eye”, “Shiv Third Eye” etc. The idea behind branding the goods in such varieties was the goods would be sold by the distributors at Coimbatore which would indicate the relationship between the seller and the goods. Due to non-payment of the price by the purchaser at Coimbatore there was a litigation ensued between the manufacturer before us and the purchaser. It resulted in a Receiver being appointed by the Hon’ble High Court of Bombay in Suit No. 1590 of 1997. it transpires before us that out of Rs. 7.5 crores the purchaser originally represented to the parties that he has got Rs. 6 crores worth of goods with him and he offered to the manufacturer plaintiff that the same may be recovered. When the receiver went to Coimbatore it was found that the value of the goods was valued at Rs. 3.8 crores only. What the receiver did was the goods which was stacked in the godown at Coimbatore in shelves and other places they were taken delivery of them and there was no marking on the goods to indicate under which invoice or lorry receipt they were received. The goods were repacked and set to Bhiwandi by means of lorry by name Nitco Roadways. The total amount of goods which were recovered was to the tune of 1428 in two instalments namely 597 in September, 1997 and 832 in November, 1997. They were taken to SMP godown and from there to RPP Roha factory. The number of bales was to the tune of 9.5. The case of the department is that once brand names Shiv Bulls Eye etc. are removed, there will not be any identifying marks as to the goods produced and which have not yet suffered the duty, there is a possibility of mix-up when the goods are removed. That is why the demand is made.
3. It is the case of the appellants who strongly rely on the statement of Shri S.G. Khapre at page 35 of the bunch of papers given to us where he states that the goods which were seized at SMP godown have suffered the duty. Shri M.H. Patil, learned counsel, stresses on the point that goods having suffered the duty as per the statement of this officer, it cannot be stated that the goods have not suffered duty when it was taken to godown and it was repacked. On the other hand as stated by us earlier that there is a possibility of mix-up and the entire case depends upon appreciation of evidence. To be fair to the learned counsel, he also invited our attention to page 384 of the paper book at Exhibit 2 where he says all the material parts have been given. As stated above it amounts to appreciation of evidence of the entire case. The case of both sides cannot be decided at this stage in a pin-point precision. The case of the department we cannot say they have also a strong case but for purpose of the waiver of deposit we are prima facie of the view that the possibility of mix-up cannot be ruled out.
4. Shri M.H. Patil with his usual persuasiveness states that the company may be 125 years old but yet financial stringency has crept in with unaudited results. He states that there is loss of Rs. 12 crores for the last quarter. We are aware of the fact that when a business is run it need not be always in a crust (SIC) but it will always be going like thing going ups and downs with sometime from top to bottom. We are not asking the assessee to pay the entire amount, we have asked the learned counsel to offer payments some money. He declined to do so. Taking the totality of the circumstances, we direct the assessee appellant to pay a sum of Rs. 3,00,000/- within one month of receipt of this order. On such payment being made, there will be waiver of the remainder of duty and penalty and stay. As far as the fine is concerned, the department should not interfere with legitimate business activity of the assessee. Compliance on June 19,2001.
(Dictated in Court)