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TMI Blog2015 (5) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... enied the relationship with the said three firms, it was found from the material on record that there were various bank transactions between the appellants and/or their subsidiaries and the said three firms. From the samples taken from the consignments of the said three firms and the market enquiry, it was found that the Exporter had declared inflated value of motor parts and availed undue DEPB credit and on the said basis DEPB Scripts were obtained and were sold in the open market. - Tribunal has taken into consideration all the three factors i.e. prima facie case, undue hardship and interest of the Revenue. The learned Tribunal has not rejected the application in toto , but out of total duty payable only 50% has been directed to be deposited , so also out of penalty payable only 10% penalty has been directed to be deposited. As such it cannot be said that the discretion exercised by the CESTAT is exercised in a perverse or impossible manner. In that view of the matter, we find no error could be found in the view taken by the learned Tribunal. - Decided against assessee. - Customs Appeal Lodg . No. 61 Of 2014 Customs Appeal ST. No. 62 to 68 of 2014, Notice Of Motion No. 1364 Of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndue DEPB credit and on the basis of the said DEPB credit, obtained DEPB Script which were sold in the open market. (c) During investigation, summons were issued to Mr. R.K . Goyal who was the Director of all the Exporter-firms. In the statement recorded under Section 108 of the Customs Act, 1962 in respect of procurement of exported goods, Mr. Goyal stated that all the records were destroyed in a fire which took place in their godown . Mr. Goyal has denied their relationship with M/s S.S. Enterprises, M/s Neel Impex and M/s Agarwal Traders. Mr. Goyal disclosed that the exported goods were procured from the open market from the traders and the procurement was looked after by one Mr. Sanjay who thereafter left the job . During investigation, the Exporter firms failed to produce any documentary evidence regarding procurement of the large quantity of parts which were exported. (d) Accordingly, show cause notices were issued to the Exporters' firms for recovery of DEPB credit obtained by them and for confiscation of the goods which were exported by declaring higher value and for imposition of penalties. The Commissioner of Customs (Exports) vide order dated 30th July 2012 dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (281) ELT 241 (Tri-Mum) and has taken contrary view than the view taken in the present case. He submits that, whereas the learned Tribunal has relied on the judgment of the Division Bench of this Court in the case of Commissioner of Customs (EP) Vs. Jupiter Exports (supra), in the aforesaid case, it has relied on the judgment of Division Bench of the Andhra Pradesh High Court in the case of Sravani Impex Private Limited Vs. Additional Director-General, DRI, Chennai [2010 (252) E.L.T . 19 (AP). 4 Mr. Bharucha , the learned Senior Counsel further submits that the authorities have not even followed the procedure prescribed in the Circular issued by the Government of India dated 8th December 1997. It is further stated that no show cause notice as is required under the said Circular, is issued to the appellants. It is further stated that an enquiry ought to have been completed within a period of 30 days or at the most within 90 days. It is further submitted that in the present case the matter is sought to be re-opened almost after four-to-five years and as such is not permissible in law. The learned Senior Counsel submits that perusal of the material on record would reveal that vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by the Apex Court in the case of Benara Valves Ltd Vs. Commissioner of Central Excise, reported in 2006(204) E.L.T . 513 (S.C.), which has been subsequently considered by the Hon'ble Apex Court in the case of Indu Nissan Oxo Chemicals Industries Vs. Union of India, reported in 2008 (221) ELT 7 (SC) . The Apex Court in the case of Indu Nissan Oxo Chemicals (supra) interpreted the provisions of Section 129E of the Customs Act. Paragraphs 14,15 and 16 of the said judgment thus read as under: 14. Two significant expressions used in the provisions are undue hardship to such person and safeguard the interests of revenue . Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 15. As noted above there are two important expressions in Section 129-E. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich occured in their godown . Mr. Goyal also denied to have relationship with M/s S.S. Enterprises, M/s Neel Impex and M/s Agarwal Traders. He made a statement that the products were obtained from open market and that the procurement was looked after by one Shri Sanjay who thereafter left the job. 12 We may state that, at this stage since we are only considering the appeals arising out an order directing pre-deposit, it will not be appropriate to observe anything on the merits of the matters. Any view, either way would unnecessarily prejudice either of the parties. In that view of the matter, we refrain ourselves from considering the rival contentions on merits. We will restrict ourselves only to find out as to whether the view taken by the learned Tribunal is in consonance with law laid down by the Apex Court and as to whether the learned Tribunal has rightly applied the aforesaid three factors while deciding the application for pre-deposit. 13 Insofar as the contention regarding the enquiry to be conduced within a period of 30 days or 90 days is concerned, we may refer to subsection 4 of Section 28 of the Customs Act, which reads thus: Where any duty has not been levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d obtained a license by fraud or misdeclaration in accordance with law. 17 Perusal of the material on record would reveal that it is the case of the Revenue that the DEPB credit was obtained by the appellants by fraud so as to avail DEPB credit on the inflated rates so that resultantly DEPB Scripts are available at inflated rates, which can be sold in the open market. In that view of the matter, in our view, the aforesaid judgments would rather support the case of the Revenue than that of the appellants. 18 Insofar as the judgment in the case of Hindustan Lever Limited by the learned Tribunal is concerned, firstly the said judgment is on merits of the appeal and not arising out of the order regarding predeposit . However, upon perusal of the paragraph-9 of the said judgment, it would reveal that in the said case though it was the case of the Revenue that the mis -declaration made under DEPB claim, an action can be taken only for denial under DEPB Scheme and action cannot be taken for the aforesaid violation of DEPB Scheme under the DEEC Scheme. In the present case, from the material placed on record, it would clearly be seen that the action is being taken by the authorities u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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