2011 (3) TMI 745 - AT - Central Excise

Waiver of pre-deposit - application for stay of recovery - Principle of natural justice - 100% EOU - the Development Commissioner himself had issued a show-cause notice dated 8-2-2005 to M/s. Galaxy Garments proposing penal action against them under Foreign Trade (Development & Regulation) Act and also proposing cancellation of Letter of Permission (LOP) - the appellants imported goods worth Rs. 18,84,92,401 without payment of duty by claiming benefit of Notification No. 53/97-Cus, but exported goods worth Rs. 75,95,000/- only - They did not even intimate the date of commencement of production of export goods to the Development Commissioner, nor did they submit the relevant documents to him under the Exim Policy provisions - It was by way of enforcement of this bond that the show-cause notice was issued for recovery of duty on the offending raw material. Prima facie, the Revenue can raise such demand of duty without invoking Sec. 28 of the Customs Act and, for that matter, without the bar of limitation - Decided against the assessee by way of direction to deposit 50% of the duty demanded

Issues:
1. Waiver of pre-deposit and stay of recovery sought by the appellants.
2. Lack of representation for the appellants despite notice.
3. Adjourning the hearing due to the Proprietor's hospitalization.
4. De novo adjudication of the show-cause notice by the Commissioner of Customs.
5. Confirmation of demand of customs duty, penalty, and fine on the appellants.
6. Allegations of fraudulent activities and non-compliance with Exim Policy provisions.
7. Violation of conditions of Notification No. 53/97-Cus by the appellants.
8. Jurisdictional objection raised by the appellants regarding the demand notice.
9. Lack of merit in the appellants' case against the findings and demand of duty.

Analysis:

1. The appellants filed applications seeking waiver of pre-deposit and stay of recovery, but no representation was made despite notice. The Tribunal noted a letter citing the Proprietor's hospitalization as the reason for non-appearance. However, as no advocate filed a Memo of Appearance, the Tribunal proceeded to dispose of the stay applications on merits.

2. The Tribunal reviewed the records and heard the JCDR regarding the case's history. The Commissioner's earlier order was set aside for denial of natural justice, leading to de novo adjudication. The Commissioner confirmed customs duty demand, penalty, and fine on the appellants after considering submissions in the second round of litigation.

3. The appellants, a 100% EOU and its Proprietor, faced allegations of fraudulent activities and non-compliance during de novo adjudication. The Commissioner confirmed a substantial customs duty demand, penalty, and fine, citing violations of Notification No. 53/97-Cus and bond conditions.

4. The Development Commissioner had previously issued a show-cause notice proposing penal action and cancellation of Letter of Permission. The appellants were found to have engaged in fraudulent activities, leading to penalties and cancellation of LOP. This earlier order was not appealed against, as highlighted by the JCDR.

5. Investigations revealed discrepancies in the appellants' import-export activities, including diversion of imported raw materials to the local market. The Tribunal noted the lack of evidence supporting the appellants' claims and upheld the penalties imposed by the Development Commissioner.

6. Prima facie, the Tribunal found no merit in the appellants' objections, including jurisdictional challenges and claims of financial hardship. A direction was given for pre-deposit of 50% of the duty amount within a specified timeline, with the possibility of waiver and stay upon compliance.

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