IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13426 of 2009 Date of decision: 11th September, 2009 M/s Mudhar Plywood Private Limited … Petitioner Versus Union of India and others … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jagmohan Bansal, Advocate for the petitioner. Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. Present writ petition is directed against an order dated 3rd July, 2009 passed by the Customs Excise & Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as, ‘the Tribunal’), whereby an application of the petitioner seeking waiver of pre-deposit, necessary for hearing of the appeal, has been decided and the petitioner company, in lieu of the amount of Rs.15,44,883/- towards central excise duty and equal amount towards penalty, has been asked to pay Rs.10.00 lakh towards central excise duty and Rs.10.00 lakh towards penalty. The Joint Commissioner, Central Excise – V, Rohtak, being the adjudicating authority, confirmed the demand of Rs.15,44,883/- towards central excise duty along with recovery of interest under Section Civil Writ Petition No. 13426 of 2009 11B of the Central Excise Act, 1944 (hereinafter referred to as, ‘the Act’) against the petitioner company. The authority had also imposed equal amount as penalty on the petitioner company under Section 11AC of the Act read with Rule 25 of the Central Excise Rules, 2002 (hereinafter referred to as, ‘the Rules’). The penalty of Rs.1.00 lakh each was also imposed upon Mr.Ajay Aggarwal and Mr.Mukesh Aggarwal under Rule 26 of the Rules. This order was upheld by the Commissioner (Appeals). The Tribunal, while disposing of the application, seeking waiver of pre-deposit, ordered the company to pay Rs.10.00 lakh towards duty and Rs.10.00 lakh towards penalty within eight weeks from the date of the order and posted the case for 7th September, 2009 to await compliance report. Pre-deposit of the balance amount of duty, interest and penalty was waived off till disposal of the appeals. Aggrieved against this order of the Tribunal, present writ petition has been filed. Petitioner, M/s Mudhar Plywood Private Limited, village Dehkora, Sampla, District Rohtak (Haryana) is engaged in manufacturer of plywood, block boards and flush doors, which fall under Chapter 44 of the First Schedule to the Central Excise Tariff Act, 1985. Petitioner company is registered with the Central Excise Department. Anti Evasion Branch of Central Excise Commissionerate, Rohtak, through their intelligence network, received information that petitioner company was removing its goods clandestinely and was evading central excise duty. As a consequence thereof, simultaneous searches were conducted at the factory premises, office, company godown and at the residence of two Directors of the company. During search, record of the company was scrutinized, physical stock of raw material and finished goods was verified. The proceedings were recorded in a panchnama dated 5th February, 2007 2 Civil Writ Petition No. 13426 of 2009 drawn at the spot. The company had made entries in the Shipra Book (kacha copy). On the basis of material gathered, a show-cause notice dated 6th July, 2007 was issued as to why the petitioner company be not held liable to pay central excise duty amounting to Rs.15,44,883/-. The show-cause notice further asked as to why central excise duty of Rs.4.00 lakh, already deposited by the company, should not be appropriated towards the duty proposed to be demanded above. The show-cause notice further called upon the assessee as to why the interest at the appropriate rate under Section 11B of the Act and penalty under Section 11AC of the Act read with Rule 25 of the Rules be not imposed. Adjudicating authority, while dealing with various contentions raised by the petitioner company, also returned the following finding: “32. The party in their reply dated 03/12/2007 filed through Sh.R.K. Jain, Consultant has admitted the evasion of Central Excise Duty amounting to Rs.67,660/-, 1,14,571/-, 26,327/- and Rs.3,68,685/- mentioned at S.No. i to iv above. With regards to the above amount admittedly evaded by the party, it has been agitated by the party that the duty amount of Rs.67,660/- and Rs.1,14,561/- involved on the finished goods and raw material found short in the factory is also included in the duty amount of Rs.3,68,685/- involved on the goods entered in Shipra note book and cleared without payment of duty and that the actual amount of duty on the goods entered in Shipra note book should be Rs.3,16,958/- after taking in to account cum-duty price criteria and not Rs.3,68,685/- and that it should be rectified. I find that duty amount of Rs.3,68,685/- based on Shipra note book pertained to the finished goods removed without payment of duty from their factory. The duty demanded on the inputs i.e. (Veneer) used in the finished goods and removed without payment of duty and the finished goods found short in the factory are no where mentioned in Shipra note book. It is not necessary that all the goods cleared without payment of duty from the factory are entered in Shipra 3 Civil Writ Petition No. 13426 of 2009 note book, which contained the details of the goods cleared without payment of duty to their head office only. Therefore, I don’t find any force in the plea taken by the party that the duty amount of Rs.3,68,685/- demanded based on Shipra note book is duplication of demand.” The order passed by the adjudicating authority was assailed before the Commissioner of Central Excise (Appeals), Delhi-III. The Commissioner (Appeals) rejected the appeal and held that the adjudicating authority had rightly inferred that the appellants have cleared the goods with a collective intention to evade payment of duty collectively amounting to Rs.15,44,883/-. As stated above, the order of the Commissioner (Appeals) was challenged before the Tribunal with a prayer that the order in appeal may be set aside and amount of duty payable be reduced to Rs.3,43,285/- and a refund of Rs.56,715/- be made in favour of the appellant petitioner company and the order of imposition of penalty be quashed. Along with the grounds of appeal, an application for stay of pre- deposit under Section 35F of the Act was also filed. The petitioner company had urged before the Tribunal that there is a duplication of demands in as much as clandestine removal is attributed to shortage of raw material and finished goods. It was submitted that goods entered in ISI register were not cleared without payment of duty. Therefore, at the most, demand should have been limited to Rs.6.00 lakh. Mr.Jagmohan Bansal appearing for the petitioner company, during course of arguments, has submitted that the petitioner is a small scale unit, having a turnover of less than Rs.3.00 crores per annum. The industry, in which the petitioner company is engaged, is passing through a difficult phase due to recession and there is acute shortage of funds and 4 Civil Writ Petition No. 13426 of 2009 the company is not in a financial position to arrange the requisite amount. The petitioner company has pleaded financial hardship and relied upon two judgments of this Court rendered in ‘Shri Ambika Steel Rolling Mills v. Commissioner of Central Excise, Chandigarh’ 2006 (200) E.L.T. 530 (P&H) and ‘M/s Sohana Woolen Mills Pvt. Ltd. v. Commissioner of Central Excise, Ludhiana’ 2004 (170) E.L.T. 526 (P&H). We have given our due consideration to the submissions made by counsel for the petitioner. The advocate appearing for the petitioner company before the Tribunal conceded that there were instances of clandestine removal of the goods. The argument that there is a duplication of demand as raised before the adjudicating authority and Commissioner (Appeals), was also raised before the Tribunal but the same was not accepted. The Tribunal observed as under: “7. … … … The clearances using parallel invoice and clearances in respect of goods mentioned in note books stand admitted. Submission has been made that the benefit of cum duty price should have allowed. These submissions may have a small impact on the total quantum of duty that may be confirmed. The applicant has not made out a prima-facie case for waiver of the entire dues as pleaded for… … …” Taking into consideration that Rs.4.00 lakh were deposited during the investigation against the amount of Rs.15,44,883/- of central excise duty and equal amount is payable as penalty, the Tribunal directed the petitioner company to pay Rs.10.00 lakh towards duty and Rs.10.00 lakh towards penalty. Payment of the balance amount was waived off. In ‘Benara Valves Ltd. v. CCE’ (2006) 13 SCC 347, the Hon’ble Apex Court held as under: “11. Two significant expressions used in the provisions are “undue hardship to such person” and “safeguard the 5 Civil Writ Petition No. 13426 of 2009 interests of the Revenue”. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35-F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka 1993 (3) SCC 467 that under Indian conditions expression “undue hardship” is normally related to economic hardship. “Undue” which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be “undue” it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word “undue” adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant.” In the present case, it was admitted before the Tribunal that the petitioner company had indulged in clandestine removal of goods. The argument of duplication of demand was considered by the appropriate authority and the Commissioner (Appeals) and rightly rejected on a prima facie basis. The petitioner company’s assertion that the industry is passing through bad times, has not been substantiated before us. Once it is admitted that the petitioner had indulged in removal of goods without payment of duty, the obligation to remedy that default arises immediately. 6 Civil Writ Petition No. 13426 of 2009 Instead of doing so, the petitioner is asking for a concession from a writ Court in exercise of its extraordinary jurisdiction, without offering any cogent explanation for its own conduct. The plea of financial hardship also remains unsubstantiated by any material. In the circumstances, we see no reason much less a compelling one to take a view different from the one taken by the Tribunal. The writ petition accordingly fails and is hereby dismissed. No costs. [T. S. THAKUR] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE September 11, 2009 rps 7