RUBICON Vs. COLLECTOR OF C EX

JUDGEMENT

(1.) THE above applications have been filed seeking waiver of pre-deposit of duty of Rs. 18,31,378.01 and penalty of Rs. 2,00,000/- on the petitioner Rubicon, Rs. 25,000/- each on petitioners Sri K.P. Subash, Sri M. James John & Smt. M.P. Mercy and Rs. 5,000/- on petitioner Sri P.C. Mathachan. THE petitioner Rubicon is a partnership firm of which the petitioners in S.Nos. 2, 3 & 4 are the partners while the petitioner in S.No. 4 Sri Mathachan was an employee.

(2.) Shri Chidambaram, the learned Consultant for the petitioners, submitted that the impugned order is in consequence of an order or remand passed by the Tribunal on 20.3.1987 in Order No. 172/87. It was submitted that in the earlier order the adjudicating authority had imposed a duty of Rs. 21,80,309.59 which has been on remand reduced to Rs. 18,31,378.01. It was urged that while the quantum of duty was reduced by more than Rs. 3 lakhs, the adjudicating authority subsequent to remand has enhanced the quantum of penalty from Rs. 1 lakh to Rs. 2 lakhs on the partnership firm.

(3.) THE learned Consultant further submitted that in the cross examination the said Balan has admitted that the figures reflected in the Register recovered from his posses- sion contain particulars of production of other people as well and only about Rs. 3 lakhs worth of clearances are attributable to the petitioners. This aspect of the case has not been properly taken into consideration by the adjudicating authority . THE learned Consultant further submitted that the valuation of the clearances adopted in the impugned order would run counter to the valuation adopted by the Department in the proceedings before the High Court wherein Chathunni Nair, Superintendent of Central Excise has sworn to an affidavit on 13.12.1984. THE learned Consultant further submitted that subsequently the Department has approved the price list of the petitioner for a lower price. Finally, it was urged that the petitioner unit is small scale unit and has been declared a sick unit as well. THE learned Consultant adverting to the Balance Sheet of the petitioner company for the year ending March 1987 submitted that the petitioner unit has been incurring losses. Apart from that, a sum of Rs. 1.14 lakhs is already due to the Kerala Financial Corporation and a further sum of Rs. 3.06 lakhs is also due from the petitioner to the State Bank of Travan-core. THE learned Consultant also submitted that the total assets of the petitioners are only Rs. 1.51 lakhs as per the Balance Sheet. THE learned Consultant, therefore, prayed for waiver of pre-deposit of duty and penalty in the above circumstances.