2014 (2) TMI 492 - HC - Customs

Waiver of pre-deposit - Commissioner of Customs(Appeals) has directed the petitioner to deposit a sum of Rs.3.75 lacs out of penalty of Rs.15 lacs imposed upon - Held that - the petitioner has himself made a statement to the Customs Department under Section 108 of the Customs Act, 1962 and admitted his involvement in defrauding the revenue. The contention of the petitioner that he was not given any opportunity to cross examine the persons whose statements were relied upon by the Customs Department during the course of investigation has to be seen in the context of petitioner in his statement under Section 108 of Customs Act, 1962 admitting his involvement in defrauding the revenue. The extent to which absence of cross examination of others can lead to absolving the petitioner of any involvement is an issue which would be required to be gone in some depth and does not by itself in the present facts constitutes a good prima facie case warranting complete dispensation of predeposit as urged by the petitioner. - no reason to interfere in the impugned order - petition dismissed.

Summary

Issues:
Challenge to order of Commissioner of Customs(Appeals) directing deposit of penalty for hearing appeal on merits; Failure to address submissions made by petitioner; Prima facie view of petitioner's involvement in defrauding revenue; Cross-examination of persons relied upon in investigation; Dispensation of predeposit of penalty under Section 129A of Customs Act, 1962.

Analysis:
The judgment concerns a petition challenging the order of the Commissioner of Customs(Appeals) directing the petitioner to deposit a sum of Rs.3.75 lacs out of a penalty of Rs.15 lacs imposed upon him for the purpose of hearing the appeal on merits. The petitioner contended that the impugned order did not address his submissions made during the hearing seeking dispensation of predeposit of penalty under Section 129A of the Customs Act, 1962. The petitioner argued that the adjudication order was passed without giving him the opportunity to cross-examine the persons on whose statements reliance was placed in the show cause notice. The petitioner sought to set aside the order and have the appeal heard on merits without any predeposit of penalty.

The revenue's counsel argued that the order was passed while deciding a stay application based on a prima facie view of the issues in the appeal. It was highlighted that the petitioner had admitted his involvement in misdeclaration of export of fabrics to enable exporters to avail of undue duty drawback benefits. The court noted that the petitioner's admission of involvement in defrauding the revenue under Section 108 of the Customs Act, 1962 was significant. The court emphasized that the absence of cross-examination of others could not absolve the petitioner of involvement, especially considering his admission. The court found that the impugned order had a prima facie view of the petitioner's involvement in enabling exporters to receive higher duty drawback benefits through misdeclaration.

Ultimately, the court decided not to interfere with the impugned order directing the petitioner to predeposit Rs.3.75 lacs within a specified time frame. However, since the deadline had passed, the court extended the time for depositing the amount. Once the petitioner made the deposit as directed, the Commissioner of Customs (Appeals) would entertain the appeal from the earlier order. The petition was disposed of accordingly, maintaining the requirement for the petitioner to deposit the specified amount for the appeal to proceed.