9911796707
TMI Blog2016 (1) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions. There is no specific pleading to the effect that the compliance of the pre-deposit condition would cause undue hardship to the appellants. We agree that it is not necessary for the appellants before the Tribunal to repeat the very same language used in the Proviso to Section 129E parrotlike, for securing an order for waiver. But at the same time, undue hardship, being a question of fact and being a factor that would vary from case to case and from person to person, an obligation is primarily cast upon any person seeking waiver to specifically plead the circumstances, in which, he is placed. But unfortunately, none of the appellants fulfilled this most fundamental requirement, in their application for waiver. The appellants cannot even contend that they have a prima facie case. A careful look at the table extracted would show that the Tribunal decided the cases into two categories namely (i) those, in which, a duty was levied together with penalty and (ii) those where only a penalty was imposed. It is in cases where what was imposed was only penalty that the Tribunal has given some waiver. In cases where a duty is levied together with penalty, the Tribunal has round ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposed of by the South Zonal Bench at Chennai of the Customs, Excise and Service Tax Appellate Tribunal, by a common order dated 26.5.2015. By the said order, the Tribunal held that the appellants had no prima facie case and that therefore, they were liable to make pre-deposit, almost equivalent to or a little more than the duty levied. Aggrieved by such conditional order, the appellants are before us. 6. Though there were 21 appeals before the Tribunal, some of them were filed by the same individual. In other words, three of those appeals were filed by Lalit Kumar Jain, three were filed by Kalpesh Patel, one was filed by Swapnil Patel, two were filed by Dipal J.Shah, two were filed by Prachi Silks, one was by Mahalaxmi Silk Trading, one was filed by Masterstroke Freight Forwarders Private Limited, another was filed by Meticulor Forwarders, yet another appeal was filed by Ramanand Surekha, one appeal each was filed by Radhey Shyam Rander, Goyal Enterprises, Hemanth Kumar, Super Shipping Services, Nupur Impex and Manjunatha Shipping Services Private Limited. 7. The amount fixed by the Tribunal for the appellants to deposit, is given in the table found in paragraph 22.6 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80,97,134/- 20,00,000/- 80,00,000/- 13 C/S/41843/2014 in C/41586/2014 Nupur Impex 1,48,47,512/- 37,00,000/- 1,50,00,000/- 14 C/S/41845/2014 in C/41587/2014 Meticulor Forwarders 15,00,000/- 10,00,000/- 15 C/S/41846/2014 in C/41590/2014 Prachi Silks 10,94,412/- 2,00,000/- 10,00,000/- 16 C/S/41848/2014 in C/41591/2014 Mahalaxmi Silk Trading 44,33,270/- 10,00,000/- 50,00,000/- 17 C/S/41850/2014 in C/41592/2014 Radhey Shyam Rander 5,00,000/- 5,00,000/- 18 C/S/41852/2014 in C/41593/2014 Goyal Enterprises 1,49,24,031/- 25,00,000/- 1,50,00,000/- 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o impose, so as to safeguard the interests of the Revenue. 12. Therefore, the exercise of power to dispense with the pre-deposit condition is controlled by two guiding factors namely (a) undue hardship to the appellants and (ii) safeguarding the interests of the Revenue. 13. In other words, the Proviso to Section 129E is not akin to the provisions of Order XXXIX Rules 1 and 2 of the Civil Procedure Code, where an application for injunction is required to be decided on the touchstone of prima facie case, balance of convenience and relative hardship. But, at the same time, while considering the application for waiver, the Appellate Authority cannot completely ignore the existence or absence of a prima facie case. Courts have read the parameters of prima facie case into the issue of undue hardship. 14. In Vijay Prakash D.Mehta Vs. Collector of Customs [AIR 1988 SC 2010], the Supreme Court indicated that all relevant factors such as the probability of a prima facie case for the appellants, the conduct of the parties, etc., can be taken into account, while deciding the question of undue hardship. At the same time, the Supreme Court cautioned in Benara Volves Vs. C.C.E. [2006 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the very same language used in the Proviso to Section 129E parrotlike, for securing an order for waiver. But at the same time, undue hardship, being a question of fact and being a factor that would vary from case to case and from person to person, an obligation is primarily cast upon any person seeking waiver to specifically plead the circumstances, in which, he is placed. But unfortunately, none of the appellants fulfilled this most fundamental requirement, in their application for waiver. 22. As a matter of fact, all the applications for waiver filed by the appellants herein contained six paragraphs. The first paragraph gave details of the duty levied and the penalty imposed. The second paragraph contained a claim that prima facie no demand can be made against them, as they were not importers. The third paragraph made a reference to the grounds of appeal. The fourth paragraph attacked the order in original as an example of gross judicial indiscipline. While doing so, a very weak appeal, that could at the most be termed as apology of a plea of undue hardship, was made. The relevant portion of paragraph 4 of the application for waiver is extracted as follows : Under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the duty free goods in Chennai Port, those were transported to Bangalore with oblique motive. Mulberry silk yarn imported duty free were not at all used in manufacture in Surat. That defeated the purpose of the advance authorisations. That not only caused evasion of customs duty, but no foreign exchange came to India without any export of finished goods made. 22.2. The high sea sales prima facie appears to be a premeditated design by importers in collusion with Vishal Agarwal to defraud customs. Importers sent money from Bangalore to Surat routing through angadias. Such money parked in different bank accounts maintained in the name of benamidars, some of whom were holders of advance authorisation. Such money again reverted back as sales consideration of imported goods to the original importers pretending to be high seas sellers. High seas sale was nothing but a cloak and the importers masqueraded as high seas sellers. Ultimate beneficiary of fraud was importers and Vishal Agarwal. The advance authorisation agreements executed by benamidars were no man of means being employees of Vishal Agarwal. 22.3. Prima facie, it also appears that advance authorisations were obta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
