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TMI Blog2009 (2) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... nd agreed by the learned counsel for the parties, we have proceeded to hear and dispose of this appeal finally at this stage. This appeal has been preferred under Section 35B of the Central Excise Act, 1944 (hereinafter referred to as 1944 Act). Aggrieved by the order dated 13.10.2008 passed by the Custom Excise and Service Tax Appellate Tribunal, New Delhi (for short "the Tribunal") on the application of the appellant seeking waiver of pre-deposit. The statute requires deposit of an amount disputed whereafter only the appeal preferred before the Tribunal could be heard. The appellant filed an application under Section 129 of the Customs, 1962 (for short "1962 Act) and sought waiver of the said application. The appeal has been disposed of by the Tribunal vide order dated 13.10.2008 (impugned in this appeal) directing the appellant to deposit a sum of Rs.15 crores in addition to Rs.1.50 crores already deposited by it. It is this order, aggrieved whereagainst the present appeal has arisen. The facts, in brief, are that the M/S Novamet Industries-appellant no.1 is a partnership firm (for short "the firm") whereof appellant nos.2 3 are the partners. The firm is 100% export o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of copper material, but also diverted such copper into the Domestic market without payment of duty in contravention of condition (7) of the B-17 bond executed by NI with the Assistant Commissioner of Customs/Deputy Commissioner of Customs. (iii) Further, NI also misdeclared the values of imported goods to reduce its export obligation and to justify lower recovery of copper metals from the scrap imported. The differential metal content so recovered were diverted into domestic market illegally and to account for the recovered material in quantity terms, items having no value or negligible value were shown to have been produced and reflected in the statutory records. The failure to maintain proper records was in violation of the condition (3) of the Customs notification under which the goods were imported duty free. (iv) NI has imported copper scrap (Berry), which is pure scrap of copper wire and was the final product for the EOU. The EOUs are allowed to import ...........................products itself. The final product was imported by mis-declaring the same as copper cable scrap. (v) The duty free imports were allowed as per notifications for export purpose. NI mis- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) NI failed to observe all the provisions of the Customs Act, 1962, Central Excise Act, 1944 and the Rules and Regulations made thereunder. (ii) NI engaged in clandestine removal of the goods from the factory without payment of duty. (iii) NI failed to observe and comply with all the provisions of manufacture and other operations, contained in the ''Warehouse Regulations, 1966' and ''Warehoused Goods (Removal) Regulations, 1963'. (iv) NI failed to maintain proper and genuine detailed accounts of all important and indigenous goods used in the manufacturing process and operations in proper form including those remaining in stock an those sent outside under their obligation. (v) NI failed to fulfill the export obligation and conditions stipulated in Customs/Central Excise Notifications, as amended, under which the specified goods have been imported/sourced, as well as the Import-Export Policy as amended from time to time. (vi) NI failed to ensure that only goods, which were allowed to be removed into DTA on payment of duty were so removed and removed goods clandestinely without payment of duty leviable on such articles under Section 3 of the Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiver. The Tribunal on 13.10.2008 rejected the stay application for complete waiver of pre-deposit of duty and interest and directed the appellant to deposit Rs.15 crores within a period of eight weeks. The appellant challenged this order dated 13.10.2008 in Civil Misc. Writ Petition No.2272 of 2008 but the same was dismissed by the Hon'ble Single Judge vide judgment dated 20.1.2009 observing that against the impugned order of the Tribunal, the petitioner has remedy of filing appeal before this Court under Section 130 of the Customs Act. Consequently, the present appeal has been preferred. Shri Bharatji Agarwal, learned Senior Counsel vehemently contended that in order to see whether the appellant is entitled for waiver or not, the condition precedent is "undue hardship" of the appellant and if it exists, the Tribunal is under an obligation to grant waiver in respect of pre-deposit of the amount though it may impose certain conditions for protecting interest of the revenue. He contends that while considering the case of undue hardship one of the relevant facets thereof is the existence of a prima facie case. He stated that certain documents were relied by the respondent-depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.03 in respect of duty free inputs and confirmed custom duty of Rs.27,10,90,863/- against appellant no.1 under Section 28 (1) of the Customs Act, 1982 along with interest under Section 28AB of the Customs Act; (c) Confiscate under Section 111 (d), (m) (o) of the Customs Act 8458.462 MT of ''Mixed Copper Cable Scrap (Druid)' and4256.29 MT of ''Mixed Copper Lead Cable Scrap (Relays) imported by respondent no.1. since these goods are not available for confiscation, imposed a fine of Rs.30 crores under Section 125 of the Customs Act; (d) Penalty of Rs.27,10,90,863/- under Section 114A of the Customs Act; (e) Confirmed Central Excise Duty demand of Rs.25,95,08,555/- along with interest; (f) Penalty of Rs.25,95,08,555/- under Section 11AC of Central Excise Act read with Rule 25 (1) of the Central Excise Act, 2002; (g) Penalty of Rs.15 crores on Vinay Jain, Rs.15 Crores on Shri Satish Bhalla Rs.5 Crores on Mrs. Sangeeta Bhalla under Rule 26 of the Central Excise Rules, 2002; (h) Penalty of Rs.27,10,90,863/- on Shri Vinay Jain, Rs.27,10,90,863/- on Shri Satish Bhalla and Rs.27,10,90,863/- on Mrs. Sangeeta Bhalla under Section 112 read with Section 114A of Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under invoicing has been made only in respect of 1.1% of the total imports. There is no reliable evidence in this regard. (6) The allegation that the Appellate company - NI has under reported the Copper recovery from copper cable scrap and copper lead cable scrap as 20% while actual recovery is 60% - 80% and the balance quantity has been cleared clandestinely to DTA without payment of duty is without any basis - based only on assumptions and presumptions." None of the grounds raised before the Tribunal shows that the argument, which have been raised before this Court in the present appeal, were either raised or argued. In the absence of the issues, which were not rake up before the Tribunal, we fail to understand as to how the appellant can be permitted to make those issues in this appeal particularly when they are the issues involving investigation into facts or mixed questions of facts and law. Even otherwise, the submission that the documents have been relied on without permitting the appellant to cross-examine the author on such document and this vitiate the entire order of the Commissioner, cannot be accepted inasmuch as there is nothing on record to show that at any poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased carbon black recovered by the 62 of the 82 invoices. The Collector rejected the letter produced by the appellant and relied upon the statement produced by the department without examining or allowing the cross-examination of Shri Kunnath and in these circumstances the Apex Court held that this approach was not correct and opportunity of cross-examination of Shri Kunnath was necessary, as is evident from the following: - "We find it extremely difficult to accept this explanation of the Collector to reject the letter written by M/S Universal Agencies. If the Collector can accept a statement allegedly made by a partner of the Universal Agencies which is not confirmed by his oral evidence in the inquiry and not subjected to cross-examination, we fail to understand how he could reject the letter signed by the very same person wherein he has given a diametrically opposed statement. In our opinion, the Collector on this point has used a different yardstick in assessing the evidence of Shri Sunny P. Kunnath" Moreover, from the substantial questions of law framed by the appellant we find that all there are basically those issues, which are yet to be decided in the appeal pend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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