TaxTMI 
TaxTMI 
2010 (11) TMI 342
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....s-in-original and those appeals were filed by the respective parties as mentioned against each in respect of consequences faced by them as appearing in the concerned adjudication orders : S. No. Order- in-Original No. and Date Customs Appeal No. Excise Appeal No. Appellants 1. 05/CC/Goa /Cus./2009 dtd. 19-3-2009 C/609/2009 - Joseph Philip C/613/2009 - R.K.K.R. Steel C/876/2009 - Tulsyan NEC Ltd. C/878/2009 - Sanjay Agarwalla 2. 06/CC/Goa/Cus/2009 dated 26-3-2009 C/610/2009 - Joseph Philip C/611/2009 - R.K.K.R. Steel C/628/2009 E/736/2009 Darshan Churiwala C/629/2009 E/734/2009 Twenty First Century Wire Rods Industries C/630/2009 E/735/2009 Vinod Goyal C/875/2009 - Sanjay Agarwalla C/877/2009 - Tulsyan NEC Ltd. 3 07/CC/Goa /Cus./2009 dated 26-3-2009 C/703/2009 - Surana Corporation Ltd. C/704/2009 - Dinesh Chand Surana C/707/2009 - Rajesh Surana C/723/2009 E/860/2009 Shikhir Vir Agarwal C/724/2009 E/859/2009 Prateek Alloys Pvt. Ltd. C/774/20....
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..../ Goa/Cus/ 2009 dtd. 7-9-09 C/1071/2009 E/1144/2009 Naresh Chandra Agarwal C/1072/2009 E/1145/2009 Global Ispat C/02/2010 - Rahul Agarwal 10. 14/CC/Goa/Cus./ 2008 dated 7-9-2009 C/12/2010 E/50/2010 Twenty First Century Wire Rods Ltd. C/1137/2009 - Sanjay Agarwalla C/1261/2009 - Sabari Exim P. Ltd. C/l 262/2009 - Shashi Kumar C/1274/2009 - AML Steel Ltd. C/13/2010 - Vinod Goyal C/14/2010 - Vinod Goyal 3. All these 106 appeals and connected stay petitions and miscellaneous applications for COD were taken together for hearing and disposal as these involve common cause and connected matters. The matter was partly heard on 29-11-2010 in the afternoon and continued in the morning of 30-11-2010. 4. In respect of three of these appeals miscellaneous applications have been filed for condonation, of delay. These applications are allowed for the reasons stated in the same and also for the reason that these applications are not opposed by the department. 5. Shri Rawal, learned Sr. Advocate appearing in respect of 8 appeals states that on the last date of hearing on....
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....also imposing penalties on high sea sales, who are neither importers nor the recipient of the impugned goods. 8. The learned JCDR, Shri P.K. Agarwal, appearing on behalf of the department takes us through the factual details of the case. He, states that the impugned goods were imported at Chennai port by availing concessional rate of duty of 5% under Notification No. 17/2001-Cus., dated 1-3-2001. The said concession was subject to the condition that the impugned goods, namely, melting scrap of iron and steel should be for use in or supply to a unit for the purpose of melting and further condition that the importer should furnish an undertaking to that effect and also subsequently the importer should produce an end-use certificate. The learned JCDR states that the detailed investigation carried out by the DRI authorities has proved that the impugned goods after import from Chennai were diverted and sold and they never reached the manufacturing units in the Goa jurisdiction from where end-use certificates have been obtained and produced. The certificates given by the Central Excise authorities were based on the records fabricated by the appellants have no value as the very ba....
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....ehemently and cites the decision of the Tribunal in the case of Shri Balaji Rolling Pvt. Ltd. v. CCE, Goa (Order No. S/91-93/WZB/MUM/2009 CSTB/C-II, dated 5-3-2009) where in similar cases pre-deposit to the extent of 50% of the duty was ordered. He also cites the following two decisions to support his contention that even where the matter requiring remand, involved fraudulent transactions, order of pre-deposit is justified :- (i) Shiv Sewa Sadan v. CESTAT, Delhi - 2010 (254) E.L.T. 249 (P & H). (ii) ICCONOL Petroleums Pvt. Ltd. & Ors. v. Commissioner of Central Excise, Raigad - Order No. A/254 to 259/09/EB/C-I, dated 11-8-2009. 12. Investigations were made to various premises of the importers to find out whether the Non-Alloy Steel Melting Scrap (hereinafter referred to as 'NASMS') imported on the basis of customs A Notification No. 17/2001-Cus., dated 1-3-2001 were supplied to units for the purpose of melting and whether the purpose for which import was made as condition precedent in terms of that notification was achieved. It was found that the goods imported were not used for the purpose that was imported. The importe....
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....invoices were proved to be bogus since no such vehicles found place in the registration record of state transport authorities. (ix) The bank accounts opened to show that the transactions were made did not prove the transaction to be genuine. When the aforesaid material facts and evidence came to notice of the investigation, the case was sent for adjudication after issuance of proper notice to all concerned parties and adjudications were done affording opportunity of hearing. 14. The impugned order demonstrate that the adjudicating authority has made an extensive examination of the case-in-hand and examined every material fact with the evidence gathered as well as the statements recorded in the course of investigation. He did find that the transactions which were apparent were not real. Granting fair opportunity of hearing to the parties, he came to the conclusion that not only there was a violation of the provisions of the Customs Act, 1962, there was violations under Central Excise Act, 1944. While the importers violated the conditions of the Notification aforesaid under Customs Act, 1962 and also other applicable provisions under that Act, the melting units e....
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....loss of revenue caused by one of the parties viz. M/s. Surana Industries as cited by the learned JCDR failed to succeed in their claim for waiver of pre-deposit before Bangalore Bench of Tribunal. When they challenged the order of the Tribunal before the Hon'ble Andhra Pradesh High Court and were directed to make pre-deposit, Revenue gained support to claim for pre-deposit from the appellants in this batch of appeals in the course of hearing to protect interest of Revenue. 18. Although there was grievance of appellants that end-use certificates were obtained by the concerned melting units to serve the purpose of notification, Revenue questions veracity of the same on the ground that the raw material itself failed to reach the concerned processing units without cogent evidence of movement of the goods to their end. When both sides are firm on their stand on the end-use certificates that called for re-examination to rule out unreliability thereon. 19. On the aforesaid backdrop, we have carefully examined the rival contentions. The case involves fraudulent use of the customs duty exemption by diverting the impugned goods imported availing concessional rate of duty whic....
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....over, the demand of Custom duty raised by the original authority is over Rs. 1 crore and an equal amount of penalty under Section 11A of the Customs Act, 1962 has also been imposed beside the demand of interest and Education cess The amount of Rs. 10,00,000/- required by the Tribunal to be deposited by the appellant cannot be considered as pre-deposit for hearing of the matter afresh by the original authority. We further find that there is no such bar under Section 35(C) of the Act that while referring case back to the original authority, the Tribunal cannot impose any condition. There is, thus, no merit in the appeal nor it involves any question of law. The matter has merely been remanded back. No question of law much less any substantial question of law warranting admission of the appeal arises for determination of this Court. Dismissed." 20. Our view also finds support from the following orders of the Tribunal, which holds as under : (i) ICCONOL Petroleums Pvt. Ltd. & Ors. v. Commissioner of Central Excise, Raigad Order No. A/254 to 259/09/EB/C-I dated 11-8-2009. "14. We have heard both sides. A specific query was put to the Ld. Departmenta....
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....d by the party towards this demand. In our view, as the appellants have not pleaded financial hardships, they should deposit a further amount of Rs. 10 lakhs for the purposes of Section 129E of the Customs Act and Section 35F of the Central Excise Act. They shall deposit this amount within a period of four weeks. At this stage, the learned Counsel seeks a further period of four weeks to enable his clients to raise funds for the deposit. After considering this plea, we direct that the amount be deposited within a period of six weeks instead of four weeks. Report compliance on 28-4-2009. In the event of such compliance, there will be waiver of pre-deposit and also stay of recovery in respect of the penalties (including penalties imposed on the Director) as well as the balance amount of duties till the final disposal of the appeals." 21. Prima facie, from the contentions of the appellants we are unable to find any balance of convenience tilting in their favour, who caused prejudice to themselves following dilatory tactics to avoid consequence of adjudication. They have failed to lead evidence to contradict the evidence gathered by the Revenue. When we found that the interest o....