2002 (7) TMI 121 - HC - Customs

Summary

Issues Involved:
1. Challenge to the interlocutory orders of CEGAT requiring pre-deposit.
2. Validity of penalties imposed by the Commissioner of Customs.
3. Financial hardship and modification applications.
4. Legal interpretation of "importer" under Customs Act.
5. Relevance of Additional Director General of Foreign Trade's orders.
6. Applicability of the CEGAT decision in Jupiter Exports case.

Summary:

1. Challenge to the Interlocutory Orders of CEGAT Requiring Pre-Deposit:
The petitioner challenged the interlocutory orders of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT), Mumbai, which required a pre-deposit of Rs. 50 lacs for hearing the appeal against the penalty of Rs. 4 crores imposed by the Commissioner of Customs (Adjudication), Mumbai u/s 112 of the Customs Act, 1962.

2. Validity of Penalties Imposed by the Commissioner of Customs:
The Commissioner of Customs (Adjudication), Mumbai, confirmed a demand of Rs. 4.22 crores and imposed penalties on various parties, including Rs. 4 crores on the petitioner. The Commissioner found that the petitioner was involved in fraudulent activities where exports were claimed but not actually made, leading to the wrongful acquisition of Advance Licences and duty exemptions.

3. Financial Hardship and Modification Applications:
The petitioner filed modification applications citing financial hardship and the reinstatement of Advance Licences by the Additional Director General of Foreign Trade. However, CEGAT dismissed these applications, maintaining the requirement for a pre-deposit of Rs. 50 lacs.

4. Legal Interpretation of "Importer" under Customs Act:
The Commissioner of Customs held that the petitioner and the four firms were deemed "importers" u/s 2(26) of the Customs Act, 1962, due to their involvement in the fraudulent acquisition and transfer of Advance Licences. The Tribunal's decision to waive duty for the four firms but not for the petitioner was contested, but the court found the Commissioner's reasoning prima facie correct.

5. Relevance of Additional Director General of Foreign Trade's Orders:
The petitioner argued that the reinstatement of Advance Licences by the Additional Director General of Foreign Trade nullified the basis for penalties. However, the court noted that the reinstatement was to protect bona fide transferees and did not absolve the petitioner of fraudulent activities.

6. Applicability of the CEGAT Decision in Jupiter Exports Case:
The petitioner cited the CEGAT decision in Jupiter Exports, which held that the original licence holder is not chargeable with duty if the licence is transferred. The court, however, did not find this reasoning persuasive and emphasized that the petitioner's fraudulent actions warranted the penalties imposed.

Conclusion:
The court dismissed the petition, upholding the pre-deposit requirement and the penalties imposed by the Commissioner of Customs, citing the petitioner's involvement in fraudulent activities and the lack of merit in the contentions raised.