2013 (4) TMI 208 - HC - Customs

Application for waiver of pre-deposit of the amount of penalty allowed partly - Held that - The findings recorded by the adjudicating authority have been taken into consideration by the Tribunal that the allegations against the appellant are of availing the benefit under Advanced Licensing Scheme without actually exporting one lakh pieces of garments.In view of the said fact, the appellant is not entitled to any other benefit than what was granted by the Tribunal. Appellant s contention that a sum of Rs. 7.00 lacs were deposited during the course of the investigation, therefore the said amount should be excluded from the amount of pre-deposit as ordered by the Tribunal is not acceptable as no such concession can be granted to the appellant for the reason that such amount was mentioned in the application to seek waiver of pre-deposit filed before the Tribunal. Since, such fact was pointed out, no reason to find infer that the order of the Tribunal is not after considering the effect of such deposit.

Summary

Issues:
- Appeal under Section 130 of the Customs Act, 1962 against a penalty imposed by the Commissioner of Customs for export fraud.
- Waiver of pre-deposit of penalty by the Customs Excise & Service Tax Appellate Tribunal.
- Violation of principle of natural justice in not providing an opportunity for cross-examination.
- Exclusion of the period spent in prosecuting a writ petition from the limitation period for filing the appeal.
- Consideration of deposited amount during investigation for waiver of pre-deposit.

Analysis:
The judgment pertains to an appeal under Section 130 of the Customs Act, 1962 against a penalty imposed by the Commissioner of Customs for export fraud. The Tribunal had partially waived the penalty amount and allowed a reduced deposit. The appellant challenged the order, alleging a violation of natural justice due to lack of cross-examination opportunity. The Court noted that the Tribunal considered the allegations against the appellant regarding the Advanced Licensing Scheme. It was determined that the appellant was not entitled to further benefits beyond what the Tribunal had already granted.

Regarding the exclusion of time spent in prosecuting a writ petition from the limitation period for filing the appeal, the Court found in favor of the appellant. The Court clarified that the period spent on the writ petition was excluded from the limitation period, making the appeal timely. The appellant also sought the exclusion of a previously deposited amount from the pre-deposit ordered by the Tribunal. However, the Court rejected this request, stating that the Tribunal had considered this deposit when making its decision on the waiver of pre-deposit.

Ultimately, the Court concluded that no substantial question of law arose for consideration in the appeal and dismissed the appeal accordingly. The judgment highlights the importance of procedural fairness, limitation periods, and the Tribunal's discretion in considering pre-deposit amounts in customs penalty cases.