9911796707
TMI Blog2004 (10) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts were received through Banker. 3.On getting information, the Central Excise Preventive Officer of the Central Excise and Customs, Meerut-II made investigation on 14-9-1998 at the business premises of the petitioner. During investigation the department opened three containers which were duly sealed with Customs one time lock seal and shipping line seal was found outside the Customs bonded area ready for dispatch. The investigating/search party of the department brought these containers to the Customs bonded area and were opened on 15-9-1998 in the presence of Shri Ashwani Kumar Jain, the petitioner in Writ Petition No. 979 of 2001. After opening the containers it was found that the containers were filled with old, used, soiled and torned clothes. Some of the clothes in Container no. II contained labels like made in U.S.A., Taiwan and Hong Kong etc. Whereas in the shipping bill goods were shown as shirts etc. During search operation of the premises of the petitioner cartons containing similar kind of clothes were found. The department seized the goods found during search operation in the premises of the petitioner as well as contents of the containers. Thereafter proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief in the writ petition. Consequently, the petitioners are permitted to amend the writ petition by incorporating the relief sought by them to be incorporated in the writ petition and the amendment application stands allowed. 8.Learned Counsel for the petitioner submitted that the respondent no. 1 has committed an illegality in not granting full waiver. Elaborating the argument it was submitted that grant of partial waiver is arbitrary and illegal, inasmuch as it has not taken into consideration "undue hardship" to be caused to the petitioners by refusing to grant waiver. In contra, learned Counsel for the department submitted that the impugned orders are perfectly justified, in the facts and circumstances of the case and, it is not open to this Court to issue a writ, order or direction by substituting its own finding. The Court is not exercising appellate jurisdiction and in exercise of the power under Article 226 of the Constitution of India, the Court is required to see as to whether there is any manifest error of law or not. 9.Section 129A of the Customs Act provides right of appeal. Section 129E of the Customs Act reads as follows : "Where in any appeal under this Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of this Court in the case of Ashish Kumar Chaurasiya v. CEGATE, New Delhi, 2003 (158) E.L.T. 151 (All.). It has been held in the above case that the authority should keep in mind as to whether appellant is in a position to pay or deposit the duty and interest demanded on the penalty levied. Non-grant of waiver will make the appeal ineffective, therefore the Tribunal should be careful in rejecting the waiver application. Considering the totality and circumstances of that case, the Court directed the petitioner to deposit Rs. 50,000/- only and stayed balance amount during the pendency of appeal. The aforesaid judgment has no application to the facts of the present case and is clearly distinguishable. In that case the petitioner was not maintaining any Bank account and had no immovable property except a share in the ancestral property. Silver bars were recovered from possession of the third person, who happened to be tenant of the petitioner and was indulged in illegal activities from the premises in question. There the petitioner claimed himself as milkman and in view of these facts this Court made aforesaid observation. The factual position in the present case is otherwise. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed amount. On the facts of the case it cannot be held that the Tribunal mis-directed itself and committed illegality in not granting full waiver or there is no application of mind by the Tribunal. Similarly in the appeal filed by M/s. Agemo Leather Components (P) Limited and M/s. Sukumar Chemicals (P) Limited the Tribunal has waived more than 50% of the disputed amount of penalty by the impugned order. 11.During the pendency of the writ petition the petitioners filed certain documents by way of supplementary affidavit disclosing the assets and property held by Ashwani Kumar Jain, wife and the only son. Details of the properties have been filed as Annexure-1 to the supplementary affidavit sworn on 21-3-2004. Much reliance could not be placed upon the said annexure in absence of any supporting material. Learned Standing Counsel has rightly pointed out that said disclosure by the petitioners were not made before respondent no. 1. Even otherwise from the details of the properties contained in Annexure-1 it is clear that Ashwani Kumar Jain besides House at 79-Railway Road Meerut, claims to be the HUF property, has a house at Dehradun, land, factory land, shed, Farm house and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s very much in dispute. The department is disputing this claim of the petitioner. A writ petition for direction for payment of duty drawback was also filed. The said writ petition was dismissed by the Division Bench of this Court and the Supreme Court has also rejected Special Leave Petition. Therefore the said argument that the petitioner should not be asked to deposit any amount in view of pending claim with regard to duty drawback, lacks merit. 15.After the close of hearing of argument an affidavit dated 23-9-2004 was filed on behalf of the petitioner. Paragraph 4 of the said affidavit reads as under : "4. That the petitioners are facing financial crises but however, looking to the facts and circumstances and in order to purchase peace, deponent submits that the direction may be issued for hearing of the appeals by the Tribunal and so far as pre-deposit is concerned the petitioners of each petition will deposit Rs. 15 lacs, Rs. 15 lacs and Rs. 20 lacs each respectively totalling to Rs. 50 lacs or a consolidated amount of Rs. 50 lacs may be directed to be deposited in respect of all three writ petitions bearing Nos. 980/2001, 981/2001 and 979/2001, which were consolidated an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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