9911796707
TMI Blog2013 (4) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... he event of due compliance, there will be waiver and stay in respect of the penalties imposed on the appellant and interest on duty. - Customs Appeal No. 1500 of 2012 - Misc. Order No.25748 & 25749/2013 - Dated:- 29-4-2013 - Shri P. G. Chacko, Member (Judicial) and Shri B.S.V. Murthy, Member (Technical) Mr. B. Venugopal, Advocate for the appellant Mr. A. K. Nigam, Additional Commissioner (AR) for the respondent ORDER Per: P. G. Chacko There is a delay of 31 days in the filing of the captioned appeal and the same has been satisfactorily explained by the appellant. Hence the COD application is allowed after hearing both sides. 2. The next application seeks waiver and stay mainly against demand of Customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imps for export) were very much present, albeit in damaged condition, in their premises on the date of visit by the Preventive Officers. This Tribunal, in the earlier round, found that this plea of the assessee was not properly considered by the adjudicating authority. In our remand order, therefore, a specific direction was incorporated for considering the assessees plea and rendering a decision thereon. On a perusal of the order passed by the Commissioner in the remanded proceedings, we find that the plea of the assessee was examined in sufficient detail in paragraphs 20 21 of the impugned order, which read as under :- 20. The only substantial issue required to be re-determined is the examination of the plea that the goods were ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted capital goods as recorded in Annexure-3 of the Notice including the paddle aerators were found short. These verifications were recorded under a Panchanama dated 18.6.2002. In his statement, the authorized signatory of the unit stated that the shortage of Aerators is due to the floods and some were rusted and damaged. However, he failed to show any rusted damaged Aerators. The same was confirmed by Shri Penna Suresh, Manager in addition. Thus, it is clear that the goods were not available on the day of the surprise visit of the officers to the warehoused premises in which these goods were bonded after duty free importation thereof. That being the case, their subsequent availability or otherwise would be of no consequence. If any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequence of such violation would be the assessee s liability to pay the duty of Customs which was foregone at the time of import of the goods. 4. The learned counsel for the appellant has pleaded financial hardships also in support of the appellant s plea for waiver of pre-deposit. In this connection, he has referred to Miscellaneous Order Nos. 316 317/2007 dated 18.6.2007 passed by this Bench in the earlier round of litigation. In the cited Misc. Order, there is an observation to the effect that the Company s financial position is very bad and, further, that the sickness of the unit was not disputed by the department. The learned counsel has also claimed support from the Hon ble High Court s order dated 7.8.2009 which was passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have also found that the assessee is not claiming prima facie case against the demand of Central Excise duty. For the reasons already stated, their claim of prima facie case against the demand of Customs duty remains unsubstantiated and their plea of financial hardships is also unacceptable. In the result, there will be a direction to the appellant to pre-deposit the entire demand of Customs duty plus Central Excise duty (less ₹ 1 lakh already deposited) within six weeks and report compliance to the Deputy Registrar on 15.7.2013. The Deputy Registrar to report to the Bench on 22.7.2013. In the event of due compliance, there will be waiver and stay in respect of the penalties imposed on the appellant and interest on duty. (Prono ..... X X X X Extracts X X X X X X X X Extracts X X X X
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