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TMI Blog2013 (5) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... mount in this regard, it is worthwhile to notice a decision of a Division Bench of this Court reported in Trendy Moods Vs. Customs, Excise and Gold Control [2008 (12) TMI 215 - HIGH COURT OF JUDICATURE AT MADRAS], wherein, the Division Bench, after taking into account the various decisions of the Supreme Court, for and against, ultimately came to the conclusion that the capacity of the appellant therein to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. Hence, it is not proper for the petitioner to approach this Court and challenge the impugned order of the CESTAT. Considering the submissions of the petitioner, he shall go before the first respondent-CESTAT and comply with the impugned order of the CESTAT, within a period of two weeks from the date of receipt of a copy of this order. X X X X Extracts X X X X X X X X Extracts X X X X ..... d from several persons including the petitioner. (c) The appropriate authority issued show cause notice, dated 6.10.2010 to the petitioner, for imposition of penalty under Sections 114 and 114-AA of the Customs Act, by demanding Rs.1,37,60,127/- in respect of 154 shipping bills. The petitioner claims that there was no mis-declaration of the goods under the impugned shipping bills. Despite being aware of the facts fully and that the petitioner fully co-operated during investigation, by furnishing all valid and vital information to the investigating agency, without filing any retraction statement, the second respondent, vide Order-in-Original No.8 of 2012, dated 29.6.2012, imposed a sum of Rs.50 lakhs as penalty, in addition to the recovery of Rs.1.37 crores, jointly and severally from the petitioner. (d) Challenging the said order dated 29.6.2012 passed by the original authority, the petitioner moved CESTAT along with stay application and the CESTAT, by the impugned order, dated 11.12.2012, held as follows: "8. ..... The penalty imposed on him is to the extent of Rs.50 lakhs. The learned Consultant has submitted inter alia that his client received an amount of Rs.3,000/- per tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shipping bill, in addition to customs clearance charges levied by the petitioner for each shipment, which would be around Rs.10,0000/- to Rs.20,000/-, which includes freight charges. It is clear from these statements of the petitioner that he acted as the Custom House Agent for getting the impugned consignments cleared through the customs formalities. (c) The penalty imposed is commensurate with the gravity of the offence committed by the petitioner. Given the gravity of the offence committed by the petitioner in association with Sri Kalandar Seeni Ahmed, the CESTAT has taken a lenient view towards the petitioner. As no amount is ordered to be paid as pre-deposit towards recovery of drawback, it cannot be construed that the CESTAT has exonerated the petitioner from recovery of ineligible drawback which was held as a joint responsibility by the original adjudicating authority. (d) From the observations made by the CESTAT in the impugned order, it is clear that the CESTAT has considered the prima-facie case and the balance of convenience of the petitioner. The impugned order is in consonance with the statutory provisions of law and is a reasoned and speaking order. (e) The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the undue hardship and the financial burden of the petitioner, and hence, it has be interfered with by this Court. 7. Per contra, the learned SCGSC appearing for the second respondent contended that the first respondent-CESTAT adopted lenient and sympathetic approach and there was a prima-facie case before the CESTAT to arrive at such a conclusion of ordering pre-deposit. The CESTAT also adopted a balancing approach in respect of waiver of payment of drawback amount and grant of stay, which cannot be questioned by the petitioner, as there is no warranting circumstance to interfere with the impugned order of the first respondent-CESTAT. 8. It is not in dispute that the petitioner was a small time broker engaged in the business of providing logistic support to the authorised Customs Clearing and Forwarding Agents of the Custom House at Tuticorin and he charged commission from CHAs and others for his services. He was running his business in the name and style of M/s.Meenakshi Agency, Tuticorin and he acted as a logistic support service provider for many Authorised Custom House Agents including one M/s.V.N.M.S.Ayyachamy Nadar, Tuticorin, who was an authorised Custom House Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also to be considered. In this regard, it is worthwhile to notice a decision of a Division Bench of this Court reported in 2009 (235) ELT 231 (Trendy Moods Vs. Customs, Excise and Gold (Control) Appellate Tribunal, Chennai), wherein, the Division Bench, after taking into account the various decisions of the Supreme Court, for and against, ultimately came to the conclusion that the capacity of the appellant therein to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant therein to resort to claim waiver of pre-deposit. 12. The cardinal principle of consideration of the waiver of pre-deposit is based on undue hardship, prima-facie case, balance of convenience, financial burden and other difficulties expressed by the party before taking the matter on appeal and these factors have to be weighed in relevant circumstances, taking into account all the material factors, which alone can come to the wisdom of the authority to give certain waiver of pre-deposit to the party who is on appeal. 13. In this case, the CESTAT took into account all the above legal principles and was lenient in or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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