Archana Wadhwa

1. All the four Stay Petition have been taken up together as they arise out of the same impugned order of the Commissioner of Central Excise vide which he has confirmed the demand of duty of Rs. 20,86,747.00 against M/s Imperial Agro Foods Pvt. ltd. and has imposed personal penalty of Rs. 10,00,000/- upon them under the provisions of Rule 173Q and penalty of Rs. 7,65,250/- has been imposed in terms of Section 11AC of the Central Excises Act, 1944. Penalty of Rs. 1,00,000/- each has been imposed upon the three appellants/applicants under the provisions of Rule 209A of the Central Excise Rules.

2. Shri Aniruddha Roy, ld. Advocate appearing for M/s Imperial Agro Foods Pvt. ltd. and Shri Omkar Nath Bhattarcharjee prays for adjournment on the ground that he is not ready with the matter. We find that the impugned order was passed in December, 2000 and the appeal was filed by the appellants in April 2001. There was sufficient time for the appellants to place on record the relevant papers etc. on which they intend to rely upon. We also note that today only Stay Petition are fixed for hearing and as such after rejecting the request for adjournment on behalf of the said two appellants, we proceed to hear Shri K.K. Banerjee, ld. Advocate appearing for the other two appellants. We also heard Shri D.K. Bhowmik ld. JDR for the Revenue.

3. It is seen that the demand of duty has been confirmed against M/s Imperial Agro Foods Pvt. Ltd. on the findings of the clandestine manufacture and clearance of biscuits. The adjudicating authority has recorded that such clearances were being effected by M/s Imperial Agro Foods Pvt. Ltd. under fake invoices which have also been used by them several times under the same series. The above findings are based upon the recovery of private record from the appellants premises during the course of search by the Central Excise Officers. The entries made therein stand further corroborated by the statements of Shri Sumit Dutta, Commercial Supervisor of the Company wherein he has admitted that such clearances were being effected on the instructions and under the guidelines of the two Directors, Shri Omkar Nath Bhattacharjee and Shri Tushar Kanti Karmakar. The adjudicating authority has also observed that the issuance of fake invoices for removal of excisable biscuits was also admitted by Shri Tushar Kanti Karmakar and Shri Omkar Nath Bhattacharjee, Directors of the Company. As such, we feel that the appellant M/s Imperial Agro Foods Pvt. Ltd. has not been able to make out a prima-facie case in their favour so as to dispense with the condition of predeposit of entire amount of duty confirmed against them. It is recorded in the order of the Commissioner that an amount of Rs. 2,00,000/- has already been appropriated towards duty. Keeping the said fact in view, we direct M/s Imperial Agro Foods Pvt. Ltd. to deposit an amount of Rs. 7,00,000/- in addition to Rs. 2,00,000/- already appropriated, within a period of eight weeks from today. Subject to deposit of above amount, the balance amount of duty and penalties imposed upon the said appellants stand waived and its recovery stayed during the pendency of the appeals.

4. As regards the penalties of Rs. 1,00,000/- each imposed on the other three appellants, we have seen the statements of various persons. A reading of such statement prima-facie shows that involvement of Shri Omkar Nath Bhattacharjee and Shri Tushar Kanti Karmakar in the clandestine activities of the Company. As such, we direct the said two appellants to deposit an amount of Rs. 25,000/- each towards penalty within a period of eight weeks from today. However, as regards Subodh Chandra Golui, we find that there is no specific averment in the statement of Shri Dutta that the said activities were being undertaken under his direction. In this view, we allow his Stay Petition un-conditionally. Matter to come up for ascertaining compliance on 3rd December, 2001. Subject to ascertainment of compliance with the above order, the appeals would be taken up for final disposal on the said date.

Dictated and pronounced in the open Court.