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TMI Blog2009 (9) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER There are two applications before us filed by the appellant, one for waiver of deposit and stay of recovery of duty and penalty and the other for out-of-turn disposal of the stay application. We have heard both sides at length so much so that the stay application is fit to be disposed of at this stage. In this scenario, the early hearing application stands allowed and we take up the stay ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand of duty on the goods by invoking the extended period of limitation under the proviso to Section 28(1) of the Act. The ld. consultant for the appellant submits that any suppression of facts or other malfeasance with intent to evade payment of duty was not alleged in the show-cause notice and therefore the larger period of limitation was not invokable in this case. He has also adverted to the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the goods are admittedly not available for confiscation and, therefore, the appellant has a good case against the fine imposed on them. Hence there will be stay of recovery of fine. However, want of physical availability of the goods for confiscation is immaterial to a penalty under Section 112 of the Customs Act. Under this provision of law, a person who has indulged in commission of an act or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter to counter the allegation and establish title to the goods. The appellant in this case has failed to discharge this normal burden which arises out of a show-cause notice. In this view of the matter, prima facie, we hold the goods to be liable to confiscation under Section 111 and the appellant to be liable to penalty under Section 112. The appellant shall therefore pre-deposit an amount of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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