2011 (10) TMI 323 - AT - Customs

Bill of entry declared goods not exceeding Rs.5,000 - From records actual value was more than what is declared - appellant is without work - goods have not been released on payment of fine, fit case for waiver of pre-deposit - Held That - license is under suspension for last 3 years and unless this issue is finally decided, revocation of suspension will not be considered. Since it is a question of operation of company, early hearing was granted.

Summary

Issues:
Delay in filing appeal condonation, Stay against impugned order, Waiver of pre-deposit, Grant of stay, Early hearing of appeal

Delay in filing appeal condonation:
The appellant sought condonation of a 12-day delay in filing the appeal, attributing it to health issues. The delay was explained by the appellant's counsel, leading to its condonation by the tribunal.

Stay against impugned order:
The appellant requested a stay against an order confirming duty demand and penalty equal to duty. The appellant's license to operate as a courier agency had been suspended since 2008, leaving them without work. The appellant argued that the consignment in question was Console Cargo and did not fulfill certain procedural requirements. The tribunal found that the appellant had not been able to establish a prima facie case in their favor. However, considering the circumstances and the fact that the goods were still with the Revenue, the tribunal waived the requirement of pre-deposit and granted the stay.

Waiver of pre-deposit:
The tribunal, taking into account the appellant's financial difficulties and the fact that the goods were not released on payment of fine, deemed it a fit case for waiver of pre-deposit. The Commissioner had also opined that a penalty under a specific section was not imposable, further supporting the decision to waive pre-deposit.

Grant of stay:
Due to the appellant's prolonged period without work and the non-release of goods on payment of fine, the tribunal granted a stay on the impugned order. The Commissioner had determined that a different penalty section should apply, leading to the waiver of pre-deposit and the grant of stay by the tribunal.

Early hearing of appeal:
The appellant sought an early hearing of the appeal, emphasizing that the suspension of their license for the past three years needed resolution for the consideration of revocation. The tribunal agreed that the operational aspect of the company warranted an early hearing. As the appeal needed to be remanded to the Commissioner for a fresh decision on merit without requiring any pre-deposit, the tribunal allowed the application for early hearing.

In conclusion, the tribunal allowed the COD application, Stay Application, and Early Hearing application, setting aside the impugned order and remanding the matter to the Commissioner for a fresh decision on merit without insisting on any pre-deposit, ensuring a reasonable opportunity for the appellant to present their case.