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Sri Vinayaga Industries & Another v/s CCE Madurai

    Appeal Nos. E/PD/310 to 312 of 2008 & E/316 to 318 of 2008. Application No. E/PD/313 of 2008 in E/319 of 2008

    Decided On, 28 April 2009

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, HONBLE MS.JYOTI BALASUNDARAM
    By, VICE-PRESIDENT & HONBLE MR. P.KARTHIKEYAN
    By, MEMBER (TECHNICAL)

    For the Appearing Parties: M.N. Bharathi, Advocate. R.P. Meena, SDR.



Judgment Text

Jyoti Balasundaram


We have heard both sides on the application for waiver of predeposit of duty of Rs.5,56,155/- confirmed against M/s.Sri Vivekananda Industries on the ground that the clearances of Sri Venkateswara Industries, Sri Vinayaka Industries and Sri Manipandian Industries were required to be clubbed with those of Sri Vivekananda Industries and they were liable to pay duty to the above extent. The period of dispute is 1980-84 and 1987-88 up to 9.9.1987. The adjudicating authority has considered the evidence before him including the material to bring out financial flow back and mutuality of interest among the four units as well as admission of R.D.Pandian, partner of Sri Vivekananda Industries and his wife P.Saradhamani. Although the ld. counsel for the applicants relies upon Order-in-Appeal No. 107-110/05 dated. 8.7.05 passed by the Commissioner (Appeals) on remand by the Tribunal involving the same units wherein the Commissioner (Appeals) has dropped the proceedings for clubbing, we find that in the present impugned order, the Commissioner has strongly relied upon sufficient material to come to the conclusion that the clearances of the units were required to be clubbed. Reliance placed on the order of the Commissioner (Appeals) by the applicants counsel is therefore prima facie not tenable. No 100% case for total waiver can be said to have been made out by the applicants in the light of the detailed finding in the impugned order. The argument that the demand is barred by limitation for the reason that no penalty has been imposed in terms of Rule 173Q upon Sri Vivekananda Industries is also prima facie not sufficient to hold that no duty demand invoking the extended period can be confirmed against Sri Vivekananda Industries. In these circumstances, we direct preposit of a sum of Rs.2,00,000/- (Rupees Two lakhs only) within a period of eight weeks from today and on such deposit, predeposit of the balance duty 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. Compliance is to be reported on 9.7.2009.


2. The other three appeals listed along with stay applications filed by Sri Vinayaga Industries, Sri Venkateswara Industries and Sri Manipandian Industries are not maintainable for the reason that in no way

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are these three units aggrieved by the impugned order which imposes penalty on its partners who are, therefore, required to file appeals along with applications for condonation of delay. Hence Appeal Nos. E/316/08, E/317/08 & E/318/08 are dismissed as not maintainable.
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