Customs, Excise and Gold Tribunal - Mumbai
Shri S.S. Shah, Shri S.P. Dabir And Shri ... vs Commissioner Of Customs on 19 June, 2003
ORDER
Shri Krishna Kumar, Member (Judicial)
1. Shri V.S. Nankani, learned advocate appeared on behalf of Shri J. Bhuta. Shri M.L. Grover, learned advocate appeared on behalf of Shri S.S. Shah. Shri S.P. Dabir appeared in person. The learned counsel, Shri Nankani submitted that a penalty of Rs. 10 Lakhs has been imposed on Shri J. Bhuta under Section 112(a) and 114 (i) of the Customs Act, 1962, He contended that the applicants are in noway concerned with obtaining the advance licences or with the alleged acts and omissions of M/s. ASD International other than for providing financial assistance to a person who were in a need of such assistance. There is no charge of any collusion by the applicant with the importers or with the foreign buyers with reference to the exports made under the licences in question. He also contended that the applicant has not been supplied the copies of the relied upon documents. The goods in question are freely importable. There is no charge of conspiracy in show cause notice. Neither there is a finding in this regard in the impugned order. Since the goods in question are not liable for confiscation, the imposition of penalty is not warranted. He also contended that the goods are not under claim of drawback. He, therefore, submitted that the penalty imposed may be waived under Section 129 E of Customs Act, 1962 and his appeal may be heard on merits. Shri Nankani relied upon the decision reported in 2001 (132) ELT 51 para 3(C) in support of his contention.
2. Shri M.L Grover, learned advocate appearing of behalf of S.S. Shah submitted that he has not yet received the notice for the date of hearing and as such the stay application on behalf of Shri S.S. Shah may be heard on subsequent date.
3. Shri S.P. Dabir appeared in person. He submitted that there is no justification of imposition of penalty on him as he was not afforded reasonable opportunity of being heard to make effective representation of his case. It is not the case of the department that there were collusion between him and the exporter. The remittances have been fully realized. He also submitted that the goods are neither prohibited nor dutiable and as such they were not liable for confiscation and also the case were not under drawback. Therefore, he submitted that the pre-deposit may be dispensed with and the appeals may be heard on merits.
4. Shri S.S. Bhagat, learned S.D.R. appeared on behalf of the Revenue and he reiterated the order passed by the lower authorities. He contended that no financial hardship is pleaded and the penalty has been rightly imposed on them.
5. After hearing the rival submissions and perusal of records, we find that Shri J. Bhuta and S.P. Dabir have made a strong prima facie case in their favour for total waiver of the penalty imposed on them. We, therefore, dispense with the pre-deposit of penalty amount imposed on them and fix the regular hearing of the appeals on 31 January 2004. The stay application of Shir S.S. Shah will be heard on 31st Jan. 2004. Notice may be issued.
(Pronounced in Court)