9911796707
TMI Blog2004 (7) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... erminations of liability to penalty on an Exporter for having allegedly misdeclared and claimed ineligible DEEC licence on such exports of certain materials, effected by them, and duty liability on to certain importers who imported the items as mentioned in the DEEC licences after availing the exemption benefits after having got the same transferred to them from DGFT. Consequent, penalties have been imposed on various persons found to be connected with the said exports, transfers of the licence and the imports. 2. The issues, involved, in these appeals are subject matter of decisions of this bench and contrary views on the liability to penalty and demands on the importers who were transferees have been held. In this connection see Dol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to call for the confiscation of the goods under Section 111(o) and or contravention of the import licences produced to render the goods liable for confiscation under Section 111(d) of the Act. In this view of the matter and that the questions of penalties and other related issues raised in these appeals have to be gone and heard in detail at the time of final hearing, at this prima facie stage, it is considered that no further pre deposits under Section 129E of the Customs Act, 1962 are called for. We waive further deposits requirements and order stay of recovery thereof pending hearing of these appeals. 3. This is found to be a fit case for posting the same for early hearing. Accordingly, we post for final hearing on 6-4-2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall, pending the appeal, deposit with the proper officer the (duty and interest) demanded or the penalty levied. Provisio to the said section provides that wherein in any particular case, the Commissioner (Appeals) or the appellate Tribunal is of the opinion that the deposit of (duty and interest) demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. 6. Thus, perusal of the above provisions makes it clear that the deposit of the duty or penalty has been made compulsory during pendency of the appeal subject, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants. He contended that the appellants are jointly and severally responsible for filing false declaration and none of them plead ignorance and he has effectively submitted that they should be asked to make full deposit of duty and penalty. 8. After perusal of the order recorded by the ld. Brother, I find that the ground for waiver as envisaged in Section 129E has not been considered. Provision of Section 129E make it amply clear that it is on appeal, the amount of duty, interest or penalty outstanding on that date is required to be deposited or waived as the case may be, keeping in view the undue hardship. The section, however does not stipulate that the amount, if any, appropriated by the adjudicating authority would also be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other applicants, the question as per the proposed draft does not bring out the issue to be referred to a third member, when for the transferees of the licences for the importers in this case there is no difference of opinion and the difference is only as regards the exporters and others, the proposed draft question of difference of opinion as Number II may kindly be considered. Sd/- Krishna Kumar, Member (J) 11. In view of the difference of opinion, the following question is required to be referred to third Member. The question is : (a) Whether the exporters of an item, which is neither dutiable nor prohibited, when exported, and mis-declarations, as to the contents and/or process of manufacture to obtain the exported produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Member (Technical) that the pre-deposit of a sum of Rs. One crore towards penalty is sufficient for the purpose of compliance with the requirement of Sec. 129E of the Customs Act, 1962, noting that the DEEC licence issued has not been cancelled by the DGFT authorities and also noting the decision of the Apex Court in the case of Commissioner of Customs (EP) Mumbai v. Prayag Exporters Pvt. Ltd. [2003 (155) E.L.T. 4 (S.C.)] = (2003-TIOL-55-S.C.-Cus.), wherein the Supreme Court has held that the provisions of Sec. 113(d) of the Customs Act are not applicable in the case of goods which are not prohibited for export (it is the exporter's case before me that the goods are not prohibited and it is their further case that the Commissioner has acce ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
