2014 (1) TMI 741 - HC - Customs

Rejection of stay application - Whether in fact or of law to hold that the Tribunal has committed an error of jurisdiction while rejecting the application for stay - Held that - Appellant have not been able to establish a prima facie in their favour and, therefore, conditions have to be imposed for safeguarding the interests of the Revenue. In fact, the appellant appear to have committed a huge fraud the ramifications of which go beyond mere tax evasion as it is common knowledge that non-edible vegetable oil imported for manufacture of soap are illicitly diverted on large scale for adulteration of edible oils. Such fraudsters do not deserve the dispensation under the provisions of first proviso to Section 129E of the Customs Act, 1962. Regarding stay granting by the Tribunal in another case - Held that - an erroneous order passed by a Tribunal cannot operate as a precedent as each case has to be decided on its own peculiar facts. This apart, a finding has been recorded by the Tribunal that the certificate issued to the appellant clearly states that it is issued on the basis of record without any physical verification - Appeal dismissed - Decided against the appellant.

Summary

Issues:
Challenge to order rejecting application for stay based on alleged fraud and nullity of assessment order due to lack of cross-examination of witnesses.

Analysis:
The appellant challenged the order passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi, rejecting the application for stay. The appellant contended that the fraud alleged by the department, forming the basis of the impugned order, was not proven. It was argued that the end use certificate issued by the concerned authority, confirming the use of imported palm oil in soap manufacturing, invalidated the fraud allegation. Additionally, the appellant claimed that the assessment order was null and void as the Assessing Officer did not permit cross-examination of relevant witnesses. The appellant sought relief from the pre-deposit condition due to the alleged illegality of the impugned and assessment orders.

Upon review, the High Court found no error of jurisdiction by the Tribunal in rejecting the application for stay. The Tribunal's order and the Assessing Officer's opinion indicated that the appellant diverted imported palm oil meant for soap manufacturing. The High Court emphasized that the end use certificate provided by the appellant was issued without physical verification and solely based on records produced by the appellant. The appellant failed to provide evidence of soap manufacturing, transportation, or sales details. The High Court highlighted findings from the Tribunal's order, including discrepancies with transportation claims and denials of soap purchases by alleged buyers, leading to a substantial outstanding amount for purported soap sales.

The High Court determined that the appellant did not establish a prima facie case in their favor and appeared to have committed a significant fraud. Due to the serious nature of the fraud, involving illicit diversion of non-edible vegetable oil for adulteration of edible oils, the High Court upheld the pre-deposit requirement set by the Tribunal. The appellant was directed to deposit specified amounts towards duty, interest, and penalty within a stipulated period. Failure to comply would result in the waiver of pre-deposit benefits and initiation of recovery proceedings.

Regarding the appellant's argument of a different outcome in a similar case, the High Court clarified that each case is decided on its unique facts, and an erroneous order cannot serve as a precedent. The High Court dismissed the appeal, concluding that the prima facie findings were adequate to deny relief in the application for stay. The High Court found no grounds to entertain the appeal and consequently dismissed it summarily.