ORDER
Gowri Shankar, Member (T)
1. Application is for waiver of deposit of duty of Rs. 66.87 lakhs and penalty of Rs. 25 lakhs on the assessee and Rs. 5 lakhs on its director.
2. The Advocate for the applicant says that demand for duty is on three grounds. The first is that production of texturised yarn cleared without payment of duty calculated on the basis of triplicate copies of labels of packing slips which were found in the assessee’s factory, the quantities of which were not entered in the RG 1 register. It is contended that labels did not bear any relation to the actual quantity of goods contained in the packing cases and that they were maintained at the stage of packing; often the goods were repacked. There are cases where although there are no labels, there are entries in the RG 1 register. The second is on the basis of two registers maintained by workmen. The duty of Rs. 18.50 lakhs relates again to the production of texturised yarn. It is contended that these registers were maintained by workmen in order to show payment record of the production. Case law Kashmir Vanaspati (P) Ltd. v. C.C.E. -1989 (39) E.L.T. 655 is cited to say that these alone are not a basis for duty. The third involving duty Rs. 3.27 lakhs relates to calculation of clandestine removal of yarn on the basis of copies of invoices which were found in the factory. Quantities mentioned were not shown in the RG 1 register. It is contended that these invoices are a result of a practice in how to write invoices by the excise clerk. It is further contended that evidence produced in the form of certificate of technician to say that the capacity in the applicant’s factory would not have generated production as allowed. Financial hardship is on the ground that the applicant had incurred a loss of Rs. 33,000/- approximately in 1997 and Rs. 13.72 lakhs in 1997-98.
3. The Departmental Representative contends that these points mentioned in the order of the Commissioner. He has pointed out discrepancy between the certificate issued by an expert of the supplier of the machine and Man Made Textiles Research Association. She cites Tribunal’s decision in Indocoat Footwear v. C.C.E., Kanpur – 1998 (99) E.L.T. 361 (Tribunal) – 1998 (24) RLT 642 and points that the balance sheet of 1997-98 is not certified by the Chartered Accountant and therefore does not constitute a sufficient evidence of hardship.
4. We find it difficult prima facie to accept the explanation rendered with regard to the first ground. The contention that packing slips have no relation to the weight of cartons prima facie is difficult to accept. The contention that the register maintained by workmen, which incidentally have no names on them in order-to get larger payment by them is prima facie hard to believe. The Advocate for the appellant stated that this was not the case. The applicability of case law would require consideration in detail. The contention that invoices were kept because they were the result of a practice by the clerk, hardly requires any consideration at this stage.
5. We also note that the balance sheet of 1997-98 is not certified by Chartered Accountant and while there has been a loss of Rs. 32,000/- shown in the previous year’s balance sheet there has been a profit of Rs. 66,000/- in the year previous to that. Taking all these factors into account/we consider it appropriate to ask the appellant to deposit Rs. 25 lakhs within two months from today upon which we waive remaining duty and penalty and stay recovery of both the appellants.
6. Compliance on 28-7-1998.