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Issues Involved:
1. Waiver of pre-deposit of Rs. 10 lakhs penalty due to financial hardship. 2. Recovery of the penalty amount during the pendency of the appeal. Issue-wise Detailed Analysis: 1. Waiver of Pre-deposit of Rs. 10 Lakhs Penalty Due to Financial Hardship: The applicant sought a waiver of the pre-deposit of Rs. 10 lakhs imposed as a penalty, citing extreme financial hardship. The applicant submitted affidavits indicating a complete erosion of capital, outstanding debts to creditors amounting to Rs. 1.22 lakhs, absence of immovable property, and no other sources of income. The applicant also stated that he had not filed income or wealth returns for the past two years due to the collapse of his business. The department, represented by the learned JCDR, opposed the stay application, pointing out that records seized by the DRI indicated that the applicant had been dealing in substantial amounts, including a receipt of Rs. 20 lakhs from a company. Despite multiple adjournments and opportunities, the department did not provide concrete evidence to counter the applicant's financial condition as stated in the affidavits. The Tribunal, after considering the affidavits and the lack of rebuttal from the department, concluded that the financial hardship claimed by the applicant could not be doubted based on the evidence available. Therefore, the Tribunal decided to waive the pre-deposit of the Rs. 10 lakhs penalty under Section 129E of the Customs Act. 2. Recovery of the Penalty Amount During the Pendency of the Appeal: There was a divergence in opinions between the members of the Tribunal on whether the department should be allowed to recover the penalty amount during the pendency of the appeal. One member (Technical) opined that while the pre-deposit for the purpose of hearing the appeal should be waived, the department should be at liberty to recover the amount if possible. This view was based on the premise that the applicant had nothing to lose if he had nothing to pay. In contrast, another member (Judicial) disagreed, arguing that the applicant's conduct and financial status did not inspire confidence. The member noted discrepancies in the applicant's financial statements over the years and concluded that the applicant had not come to court with clean hands. This member proposed that the applicant should deposit Rs. 25,000, with the balance of the pre-deposit waived and recovery stayed until the appeal's pendency. The member cited the Kerala High Court's ruling in Ashok Rubber Products v. C.C.E., which held that an order dispensing with the requirement of pre-deposit should operate as a stay order against recovery until the appeal's disposal. The third member, called upon to resolve the difference, agreed with the Judicial Member's view. The third member emphasized that the financial condition stated by the applicant had not been countered by the department despite numerous opportunities. The member concurred that the waiver of pre-deposit should operate as a stay order against recovery, aligning with the Kerala High Court's judgment and the Tribunal's previous decisions. Final Order: In light of the majority opinion, the Tribunal ordered that the pre-deposit of Rs. 10 lakhs imposed as a penalty on the applicant is waived under Section 129E of the Customs Act. Furthermore, the recovery of the penalty amount by the Revenue is stayed during the pendency of the appeal.
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