JUDGMENT
1. The petitioner was availing exemption from Central Excise duty on Straw Board in terms of Notification No. 80/80 dated 19-6-1980 falling under Tarrif Item No. 17(2). On 6-10-1983 the Preventive Officers of the Central Excise, Kanpur, detected that in addition to manufacturing the Straw Board, the petitioner was also manufacturing "Rice" by dehusking paddy falling under Tarif Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 in the same premises under the same manner and the same partnership. The petitioner had commenced manufacture of straw board with effect from 11-3-1981. and had availed exemption from payment of Central Excise duty during the financial year 1980-81 to 1982-83 in terms of the aforesaid Notification dated 19-6-1980. There was also a provision in the said notification to the effect that if the value of clearances of all excisable goods by him or on his behalf, for home consumption from one or more factories, during the preceding financial year, had exceeded Rupees Twenty Lakhs, the said exemption shall not be withheld. For the three financial years, value of the clearances of both straw board and rice stood as under :-
"The value of the clearances of both straw board and rice during the financial years was as under :-
2. Thus in view of the aforesaid fact that the value of clearances exceeded Rs. 20 Lakhs during each of the above financial years, the petitioner was not eligible for exemption from payment of excise duty on straw board manufactured and removed by it. Therefore, the Collector, Central Excise, Kanpur, adjudicated the case by passing the impugned order dated 9-5-1985 and after a consideration of all the pleas put forth by the petitioner adjudged duty on the said goods, total Rs. 14,135/- and also imposed penalty of the Central Excise Rules as contained in his said order.
3. Aggrieved against the above order passed by the Collector, Central Excise, Kanpur, the petitioner filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, and also moved a stay application for waiver of the penalty amount subject to the deposit of the amount of duty within six weeks. On a consideration of various pleas the aforesaid Tribunal has passed the impugned order dated 23-9-1985 dispensing with the deposit of penalty only. Consequently, the petitioner was required by the said order to deposit the amount of customs duty. Still aggrieved, the petitioner has filed the present writ petition against the aforesaid order dated 23-9-1985 passed by the aforesaid Tribunal on the stay application filed by the petitioner. Counter-affidavit and rejoinder-affidavit has been exchanged in this case.
4. I have heard learned counsel for the petitioner. No body has appeared on behalf of the Central Excise Department although the Court waited for much time. From a perusal of the impugned order passed by the aforesaid Tribunal, it is clear that the arguments advanced for dispensing with the deposit of the disputed amount before the aforesaid Tribunal were three in numbers. First was that the order passed by the Collector was ex parte. ln this regard the aforesaid Tribunal has in paragraph 2 of his judgment stated that several opportunities were given by the Collector to the petitioner for more than seven months by way of several notices but the petitioner for one reason or the other did not appear. These notices were sent by registered post. Telegrams were also sent. The aforesaid Tribunal, therefore, was of the opinion that it is not a case where a single notice was issued when the party did not appear. Thus the aforesaid Tribunal did not find any force in the first contention raised on behalf of the petitioner in support of the stay application. The second point raised was for determining the exemption limit and interpretation of the notification in question. The aforesaid Tribunal held that this is a disputed point which will be considered at the time of the final hearing.
5. Coming now to financial hardship, the aforesaid Tribunal in paragraph 4 of the impugned order has held that the financial position of the assessee-petitioner cannot be considered to be fairly satisfactory. For arriving at the said finding the aforesaid Tribunal has set out in details various factors in regard to balance sheet under various heads. Still the aforesaid Tribunal took a lenient view of the matter and has directed for depositing the amount of customs duty and has stayed the recovery of the penalty amount by the impugned order.
6. Learned counsel for the petitioner during the course of his submissions has relied upon three cases of this Court. In so far as the case of Luxco Eledronics v. Union of India and Ors. [1987 (31) E.L.T. 883] and the other case of the same Luxco Electronics v. Union of India and Ors. [1988 (33) E.L.T. 641 (All.)] are concerned, the stay application was disposed of by the Tribunal without following the directions of the High Court regarding the prima facie determination of plea of demand being time-barred. In these circumstances in these two cases the High Court set aside the impugned orders of the Tribunal and remanded the matter of stay back for consideration afresh. This position does not operate in the present case in as much as the impugned order of the Tribunal does not make a mention that any such point was either pressed before the Tribunal at the time of hearing. Even from the stay application, a copy of which has been filed as Annexure at page 89 of the paper book and at page 90 of which reasons for seeking stay have been stated but in none of them the plea regarding the demand being time-barred has been taken. This contention, therefore, is devoid of substance. The third case relied upon by the learned counsel is the case of M.C. God v. Union of India and Ors. [1988 (35) E.L.T. 449 (All.) ]. It has been held in this case that while granting dispensation of penalty or duty the Tribunal has to be realistic. After going through the impugned order of the aforesaid Tribunal we find that in paragraph 5 of the impugned order, the Tribunal has, in fact, been realistic in as much as it has out of Rs. 4 Lakhs and odd dispensed with the deposit of Rs. 3 Lakhs. Thus the submission made on behalf of the petitioner that the Tribunal was not realistic while granting dispensation is also not correct.
No other point was pressed.
7. In the result, the writ petition fails and is dismissed with no orders as to costs as no body appeared on behalf of the respondents during the course of hearing. The interim order granted by this Court dated 31-10-1985 is hereby vacated.