2007 (3) TMI 611 - AT - Customs

Summary

Issues:
Waiver of pre-deposit and stay of recovery in relation to penalty imposed under Section 112 of the Customs Act.

Analysis:

1. Issue of Penalty Imposed:
The judgment addressed the issue of penalty imposed under Section 112 of the Customs Act on the applicants for importing second-hand machinery and clearing it on payment of duty on enhanced value. The adjudicating authority held the goods liable for confiscation under Section 111 of the Act and imposed penalties on the importer under Section 112. The applicants sought waiver of pre-deposit and stay of recovery in this regard.

2. Judicial Precedents and Case Law:
The judgment considered the opposing argument based on a Kerala High Court judgment that held similar old/used machinery not to be 'capital goods,' upholding confiscation and penalty. However, the applicants cited decisions of the AP and Calcutta High Courts favoring them. The civil appeal against the Kerala High Court's judgment was admitted by the Apex Court, indicating uncertainty about its correctness. As no appeals against the AP and Calcutta High Courts' decisions were admitted, those decisions remained in favor of the applicants. The judgment highlighted that the case law overwhelmingly favored the applicants due to these considerations.

3. Grant of Waiver and Stay of Recovery:
After examining the records, hearing both sides, and considering the conflicting judicial precedents, the Tribunal granted waiver of pre-deposit and stay of recovery in respect of the penalty amounts imposed on the applicants. The decision was based on the fact that the case law, particularly the decisions of the AP and Calcutta High Courts, favored the applicants, and the uncertainty surrounding the Kerala High Court's judgment due to the pending civil appeal.

In conclusion, the judgment by the Appellate Tribunal CESTAT, Chennai, addressed the issue of penalty imposed under Section 112 of the Customs Act on the importers of second-hand machinery. It analyzed conflicting judicial precedents, ultimately granting waiver of pre-deposit and stay of recovery in favor of the applicants based on the overwhelming support of case law and the uncertainty surrounding the Kerala High Court's judgment.