2013 (8) TMI 617 - AT - Customs

Stay application Revenue contended that the CHA had facilitated in clearing the consignments on the basis of forged/tampered licences. - waiver of pre deposit of penalties u/s 112(a) Held that - the entire case starts on the basis of clearance of consignments based on forged/tampered licence. If the same is not available for defence of the assessee or the person, the appellant had made out a case for waiver of pre-deposit of the amounts involved - he had to defend himself against the charges of being involved in the import of goods which were cleared by producing forged/tampered invoices stay granted. Condonation of delay - applications was filed for condonation of delay of ten days in filing the appeal Held that - The delay was marginal - delay condoned.

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Waiver of pre-deposit of penalties imposed under Section 112(a) of the Customs Act, 1962.
3. Validity of penalties imposed based on forged/tampered licenses.

Detailed Analysis:

1. Condonation of Delay:
The applications were filed for condonation of a ten-day delay in filing the appeal before the Tribunal. Considering the delay as marginal, the Tribunal condoned it and directed the Registry to take all stay petitions and appeals on record.

2. Waiver of Pre-deposit of Penalties:
The appellants filed stay petitions seeking waiver of pre-deposit of penalties imposed by the adjudicating authority under Section 112(a) of the Customs Act, 1962. The penalties varied across different appellants, with amounts specified in the judgment. The Tribunal noted that the appellants were Clearing House Agents who facilitated the clearance of consignments from Kandla Port. The Revenue's case was based on the allegation that the appellants used forged/tampered licenses for clearance. However, the Tribunal found that the forged/tampered licenses were not available during the investigation and could not be produced before the Bench. Given the lack of availability of these crucial documents, the Tribunal found that the appellants had made a prima facie case for waiver of the pre-deposit. Consequently, the applications for waiver of pre-deposit were allowed, and recovery was stayed until the disposal of the applications.

3. Validity of Penalties Based on Forged/Tampered Licenses:
The Tribunal observed that this case was in its third round of litigation. In the previous round, the adjudicating authority was directed to make available the forged/tampered licenses and invoices on which the duty liability was based. However, these documents were still not available. The Tribunal noted that the entire case was predicated on the clearance of consignments using forged/tampered licenses. Without these documents, the appellants could not adequately defend themselves against the charges. Therefore, the Tribunal found that the appellants had a valid defense and granted the waiver of pre-deposit.

Conclusion:
Given the repeated absence of crucial documents (forged/tampered licenses), the Tribunal granted the waiver of pre-deposit of penalties and stayed the recovery until the final disposal of the appeals. The Tribunal also directed the Registry to list all related appeals together for disposal on a specified date, emphasizing the need for an expedited resolution of the matter.