2010 (10) TMI 425 - AT - Customs

Waiver of pre-deposit - Financial hardships - Appelant stated that he filed income tax returns upto 2005-06, whereas in his affidavit dated 21-10-08 he stated that he never filed any income tax returns as his income was within exemption limit - Before this Tribunal, he is proved to be dishonest inasmuch as, in his affidavit, he stated a lie by stating that he never filed any income tax returns - He has not offered any satisfactory explanation as to why he chose to state a lie in the affidavit - The appellant has, by his conduct, shown that he has prayed for the said relief through dishonestly swearing an untrue fact before the Tribunal - In these circumstances, the plea of financial hardships made in this application cannot be accepted. Waiver of pre-deposit - In the affidavit affidavit dated 27-7-06 is just contradictory to what the appellant stated in his statements under Section 108 - the appellant, before the investigating officers, stated that he had imported the goods at the behest of one Shri Ashok Mehta -However, he was not in a position to give the identity of Mr. Ashok Mehta - In the affidavit dated 27-7-06, he admitted that he, and no one else, was responsible for the subject import - There is no evidence on record to show that the fact recorded by the appellant in the affidavit was subsequently retracted - Plea is hard to believe, inasmuch as the net weight of the goods is 1500 grams and the total weight of the packaging material is claimed to be around 35 kg - The subject import was made in June 2006, which is much after the cited imports and hence cannot be said to be contemporaneous imports - Hence, the appellant has not made out a reliable case against the assessable value determined by the Commissioner - Direct to pre-deposit.

Summary

Issues:
1. Waiver of pre-deposit and stay of recovery regarding duty and penalty amounts.
2. Correct valuation of imported goods.
3. Financial solvency and honesty of the appellant.
4. Consideration of evidence and submissions on merits.
5. Compliance with natural justice principles.

Issue 1: Waiver of pre-deposit and stay of recovery regarding duty and penalty amounts:
The appellant sought waiver of pre-deposit and stay of recovery for duty and penalty amounts related to the clearance of "INORGANIC COMPOUND OSMIUM TETRAOXIDE." The appellant initially attributed the import to another individual but later admitted sole responsibility. The appellant also disputed the valuation of the goods and requested a remand for an effective reply to the show-cause notice. The Jt. CDR opposed the plea for remand, arguing that the appellant failed to establish financial hardship. The Tribunal examined the appellant's financial status, finding discrepancies in income declarations and income tax filings, leading to a rejection of the plea based on financial hardships.

Issue 2: Correct valuation of imported goods:
The appellant's affidavit contradicted his earlier statements regarding the import process and quantity of goods. The appellant claimed the correct weight was 1500 grams, while the declared weight included packaging material. The Commissioner based valuation on contemporaneous imports, choosing the lowest value. The appellant provided data on rival imports to challenge the valuation, but the Tribunal found the appellant's case unconvincing. The Tribunal concluded that the appellant failed to present a reliable case against the assessable value determined by the Commissioner.

Issue 3: Financial solvency and honesty of the appellant:
The Tribunal scrutinized the appellant's financial status and honesty. Discrepancies in income declarations and income tax filings revealed dishonesty. The Tribunal found the appellant's conduct dishonest, as he provided false information in his affidavit seeking waiver of pre-deposit and stay of recovery. The appellant's financial solvency, including his wife's income and property ownership, undermined his claim of financial hardships.

Issue 4: Consideration of evidence and submissions on merits:
The Tribunal considered the appellant's statements, affidavit, and submissions on merits. The appellant's contradictory statements and lack of evidence to support his claims weakened his case against the valuation of the imported goods. The Tribunal overruled objections to considering the appellant's affidavit, as it was mentioned in the show-cause notice. The Tribunal found the appellant's arguments insufficient to challenge the Commissioner's valuation decision.

Issue 5: Compliance with natural justice principles:
The Tribunal noted the delay in the appellant's response to the show-cause notice and the Order-in-Original. The appellant failed to provide a valid explanation for the delay, weakening the plea of negation of natural justice. Consequently, the Tribunal directed the appellant to make a pre-deposit under Section 129-E of the Customs Act, ordering a specific amount and compliance deadline.