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TMI Blog2008 (10) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... , for the Appellant. Shri Sumit Kumar, DR, for the Respondent. [Order per : M. Veeraiyan, Member (T)]. The Hon ble High Court of Delhi by order dated 24-7-2008 set aside the Tribunal s Stay order Nos. C/114-116/08, dated 2-3-2008 with the direction to consider the applications for waiver of pre-deposit afresh after taking into consideration the plea of financial raised by the petitioners. 2.1 These applications were, accordingly, taken up for hearing afresh in pursuance of the above direction of the Hon ble High Court of Delhi. 2.2 On behalf of the applicants, the Statements of Account relating to M/s. Intrade Impex Pvt. Ltd. and M/s. Akay Cones Pvt. Ltd. as on 29-8-2008 and copies of the income tax return for the assessment year 2008-2009, in respect of Shri H.M. Prabhakar, were filed. 3. The relevant facts, in brief, are as follows : (a) Of the three applicants before us, M/s. Intrade Impex Pvt. Ltd. and M/s. Akay Cones Pvt. Ltd., are private limited companies and the other applicant, Shri H.M. Prabhakar, is the one of Directors of these two companies. (b) Of the appellant companies imported fabrics manufactured by M/s. Culp Inc. of USA, Microfibre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rabhakar was passed. (f) The matter came before the Tribunal and the Tribunal vide order dated 13-7-2006 [2006 (206) E.L.T. 660 (Tribunal)] directed the appellant companies to make deposit of duty amounts demanded and to report compliance on 20-9-2006, Shri H.M. Prabhakar was directed to make a deposit of Rs. 1 crore towards penalty imposed on him and to report compliance on 20-9-2006. Against the said order of the Tribunal, they moved the Hon ble High Court of Delhi who declined to waive the pre-deposit as ordered by the Tribunal. (g) Against the order of the Hon ble High Court of Delhi, they moved the Hon ble Supreme Court and a sum of Rs. 1 crore was deposited on 2-2-2007 as ordered by the Hon ble Supreme Court. The Hon ble Supreme Court vide their subsequent order dated 30-4-2007 set aside the order of the adjudicating authority with direction for de novo consideration. (h) Commissioner, in pursuance of direction of the Hon ble Supreme has decided the issue afresh vide his order dated 26-10-2007 by which he has confirmed duties, penalties identical to the order dated 30-12-2005 passed by the previous Commissioner. 4.1 Learned advocate for the appellants subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,60,000/- (present value more than Rs. 4,00,000/-) released under the impugned order are also with the department and the appellant undertakes not to stake claim on the same till the final disposal of the Appeals. 5.1 Learned SDR took us through the documents such as the invoices raised by the manufacturers to the intermediary suppliers, the invoices raised by the intermediary-suppliers to the appellant companies, the bill of ladings to show that for the very same consignments supplied directly from the manufacturers to the appellant companies, the invoices were raised at 1/3rd of the actual prices by introducing the intermediary firms. 5.2 Shri H.M. Prabhakar has directly negotiated with the Belgium based manufacturer as could be seen by his visiting card which was produced by the representative of the Belgium based manufacturer to the Customs Authorities, Belgium. Several e-mails exchanged indicate direct negotiation by Shri H.M. Prabhakar with the manufacturers; that he was aware of the actual payments to the consignments by the intermediary suppliers; that he has ensured for letters for credit for the manufacturers invoice values. 5.3 The evidence collected throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents by declaring the value as 1$ PMT as against 3-5 $ PMT and that sold the imported goods in the local market at prices ranging from Rs. 210 to Rs. 230 per meter whereas the sale value was shown as Rs. 80 to Rs. 115, that they manipulated accounts to hide their sales transactions; their local sales invoices indicated quantity strangely as 1,340.009 meters etc. We are of the view that as the import value and the sale value have not been fully and correctly reflected in their invoices/book of accounts, and there have been collection in cash amounts in excess of invoices, their books are not at all reliable as indicator of their actual financial positions. The interest of revenue is also required to be taken into account. 8. In the light of the above, we hold that the appellant companies have not made out a case for total waiver of duties demanded from them. Similarly, we hold that there is no justification for total waiver of penalties imposed on Shri H.M. Prabhakar, and that his income tax returns cannot be relied upon to determine his financial position. 9. We find that in pursuance of order passed by Hon ble Supreme Court a sum of Rs. 1 crore was deposited on 2-2-2007 by M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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