TaxTMI 
TaxTMI 
2013 (5) TMI 98
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....ding logistic support to the authorised Customs Clearing and Forwarding Agents of the Custom House at Tuticorin and charged commission from CHAs and others for his services. He was running his business in the name and style of M/s.Meenakshi Agency, Tuticorin and acted as a logistic support service provider for many Authorised Custom House Agents including one M/s.V.N.M.S.Ayyachamy Nadar, Tuticorin, who was an authorised Custom House Agent in the live rolls of the CHAs of the Tuticorin Custom House. The petitioner's services include providing logistic services like arranging the transport for movement of export and import cargo from in and out of the Custom House, Tuticorin, including all the container freight stations attached to it and he provides transport, men and materials for loading and unloading of cargo in and out of Tuticorin Port and its attached CFSs. (b) The DRI Officers of the Tuticorin Unit intercepted a container CRXU 3313429/20 pertaining to 10 shipping bills filed by M/s.Perfect Impex, Tuticorin and M/s.Vinnarasi International, Tuticorin on 6.4.2010 filed by CHA M/s.V.N.M.S.Ayyachamy Nadar & Bros and brought the container from Port area to SEC CFS. The main allega....
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....e amount of penalty as well as the balance amount of the drawback amount." Challenging the said order of the CESTAT, the petitioner has filed this Writ Petition for the above relief. 4. The Assistant Commissioner of Customs (Legal) in the Office of the Commissioner of Customs, Custom House, Tuticorin, has filed counter affidavit on behalf of the second respondent, inter-alia stating as follows: (a) Nowhere in the impugned stay order of the CESTAT, it is stated that the petitioner is not the beneficiary of the irregular drawback. The recovery of the drawback amount of Rs.1.37 crores, which is ordered to be paid jointly and severally, is stayed by the CESTAT in respect of the petitioner, and the relief is granted after considering the petitioner's plea of waiver with humane consideration. The CESTAT does not grant waiver of any pre-deposit of drawback amount merely on the ground that the beneficiary of the entire drawback amount is one Sri.Kalandar Seeni Ahmed, a co-applicant along with the petitioner before the CESTAT. (b) As per the statement dated 7.4.2010 given by the petitioner as seen from the Order-in-Original, as his father did not have Rule 9 licence, he used to get sign....
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....ment Treasury getting filled by genuine tax payers on the one hand, and getting drained by way of such fraudulent activities on the other hand, does not augur well with the system. (g) As per the decision of the Supreme Court in a catena of judgments, the undue hardship is to be established by the petitioner and mere assertion of hardship is not a sufficient ground. There is no finding by the CESTAT on the financial position of the petitioner, because he has not pleaded any such hardship before the CESTAT and he stated so only in the Writ Petition, which is an after-thought, in order to seek the waiver of pre-deposit. The CESTAT observed that there is a prima-facie indication of a deliberate involvement of the petitioner in the fraudulent transactions. (h) Since the petitioner failed to pay the penalty imposed on him as per the order of the CESTAT, dated 11.12.2012, a detention notice, dated 24.1.2013 was issued by the Assistant Commissioner of Customs under Section 142 of the Customs Act, which empowers the authority to issue the said notice for the detention of the goods in lieu of recovery of the Revenue dues, and the said detention notice is issued as per the CBEC's Circular ....
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.... that the goods did not possess the basic shape of the shoe upper and more than 50% of the consignment was unusable/used waster and the actual value of the goods was declared wrongly by the petitioner. The said show cause notice was adjudicated by the petitioner and the original authority passed the Order-in-Original in No.8 of 2012, dated 29.6.2012, imposing penalty of Rs.50 lakhs under Sections 114 and 114-A of the Customs Act, in addition to recovery of Rs.1,37,60,127/- being the drawback amount jointly and severally, as against which, the petitioner filed appeal before the first respondent-CESTAT, along with stay petition and on a consideration of the entire material documents available on record, the CESTAT came to the conclusion to entertain the appeal on condition of pre-deposit to be made by the petitioner, as extracted above. 9. The impugned order of the first respondent-CESTAT is questioned by the petitioner on the ground that there is undue hardship and financial burden for the petitioner to pay the pre-deposit amount, which has not been taken into account by the CESTAT before passing the impugned order. Besides that, the contentions raised before the CESTAT were also u....