TaxTMI 
TaxTMI 
1995 (1) TMI 184
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..... Advocate submitted that proceedings were instituted against the petitioner on the ground that the petitioners imported Steel Wire Rods duty free under DEEC scheme and without utilizing the imported goods in the export, sold the same in the market and the proceedings eventually under the impugned order appealed against. The ld. Counsel submitted that initially in respect of the same transaction, a show cause notice was issued on 8-8-1989 alleging illegal diversion of goods imported duty free, to the extent of about 3000 MT of Steel Wire Rods in which the penalty of Rs. 20.00 lakhs was levied on the petitioner. The petitioner preferred an appeal before the Tribunal and took out an affidavit and pleaded undue hardship on financial grounds an....
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....n, it would not be legally permissible for the Dept. to initiate proceedings once over on the identical facts and levy of excessive and exorbitant penalty of Rs. 50.00 lakhs on allegedly smaller quantum of imported goods illegally diverted. The ld. Counsel submitted that on the application of principles of Order 2 of Rule 2 and on the principles of Doctrine of Issues Estoppel, the present impugned order would prima facie stand vitiated and would be un-sustainable in law and on facts. 4. The ld. Counsel further submitted that the present petitioner at the relevant time of import was not the Managing Director of the petitioner's company but was only a Director and when the Department has chosen to impose under impugned order a huge pe....
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.... further submitted that non-availability of goods in question for purpose of confiscation would be relevant factor to be taken into consideration in fixing the quantum of penalty. The ld. SDR took us to Pages 81 and 82 of the impugned order and contended that there is a clear evidence on record to bring home a charge against the petitioner justifying the levy of penalty. The ld. SDR also drew our attention to Section 112 of Customs Act which would empower the adjudicating authority to levy penalty not exceeding 5 times the value of goods depending upon the facts and circumstances of case and gravity of charge against the person concerned. The ld. SDR placed reliance on the ratio and ruling of Tribunal in the case of Maharashtra Tubes Ltd. v....
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....Wire Ropes Ltd. in September, 1988 [he] is neither having any business nor is employed anywhere. He has not even filed income tax and wealth tax returns since 1985 as there was no taxable income. The appellant has absolutely no resources whatsoever to pay the huge penalty of Rs. 20 lakhs imposed on him. The appellant does not have any immovable property and have any balance in the bank accounts. In view of the aforesaid position learned Advocate has stated that even though he has got a good and prima facie case on merits but he would pray for allowing the stay application purely on the basis of financial condition as mentioned above. Sh. S.K. Singhal, the ld. JDR does not have any evidence to rebut the financial condition of the applicant a....
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....nd substantive right of appeal cannot be whittled down if a person is able to substantiate the plea of undue hardship. To a specific query from the Bench, the ld. Counsel for the petitioners submitted that the petitioner is now not even a Director of the company and is eking out his livelihood at the hands of his children. Therefore without expressing any opinion in the merits of the issue we are inclined to think that on grounds of financial incapacity and undue hardship pleaded by the petitioner in Affidavit in regard to which department has no instructions or evidence contra, we are inclined to think that the petitioner would be entitled to the grant of waiver of pre-deposit of penalty. We also take into consideration the plea of the ld.....