1991 (11) TMI 149 - AT - Customs

CEGAT grants stay, waives penalty pre-deposit during appeal. Applicant's rights upheld.

SUDHIR KUMAR Versus COLLECTOR OF CUSTOMS

The Appellate Tribunal CEGAT, CALCUTTA granted an absolute stay, waiving the penalty pre-deposit during the appeal process. The Tribunal found that the ... Stay/Dispensation of pre-deposit of penalty Issues: Request for waiver of penalty pre-deposit based on prima facie case; Violation of principles of natural justice due to denial of cross-examination of Seizing Officer; Discrepancy in financial condition evidence.In this case before the Appellate Tribunal CEGAT, CALCUTTA, the applicant sought a waiver of the penalty pre-deposit during the pendency of the appeal based on a prima facie case. The applicant's representative argued that the Seizing Officer, who recorded the statement under Section 108 of the Customs Act, was not allowed to be cross-examined despite requests made in this regard. The applicant claimed that the statement was given under compulsion and was retracted later. It was contended that the applicant had no connection with the foreign fabrics seized and relied on the violation of principles of natural justice, citing a decision of the Calcutta High Court. Additionally, the applicant's poor financial condition was highlighted as a factor in the request for waiver.On the other hand, the Junior Departmental Representative (J.D.R.) argued that the applicant's conduct was suspicious, indicating knowledge of the foreign textiles found in another person's house. The J.D.R. pointed out discrepancies, such as the applicant's statement about purchasing dust for a certain amount without possessing that money. The J.D.R. emphasized that the applicant was present in the room where the foreign textiles were found, suggesting awareness of the goods. Regarding the financial evidence, the J.D.R. raised concerns about the outdated nature of the financial certificate provided and the lack of current financial information from the applicant.Upon considering the arguments from both sides, the Tribunal acknowledged that a detailed examination of the circumstances against the accused would be necessary during the appeal proper. However, the Tribunal noted that the applicant's request to cross-examine the Seizing Officer was denied without clear grounds provided in the Order. Referring to a decision of the Calcutta High Court, the Tribunal found that the applicant had a prima facie case based on the denial of cross-examination. Consequently, the Tribunal granted an absolute stay as requested, waiving the pre-deposit of the penalty during the appeal process. The Tribunal directed the appeal to proceed in due course for further examination of the facts and circumstances.