Tribunal Grants Waiver for Penalty Pre-Deposit, Ensuring Fair DefenseStay petition – waiver of pre deposit of penalty u/s 112(a) – department contended that assessee had facilitated in clearing the consignments on the basis of forged/ tampered licenses – Held that:- The forged/ tampered licenses were not available even at the time of investigations and hence could not be produced before the bench - forged/ tampered license were not made available by the department – assessee had made a prima facie case in its favour – application for complete waiver of pre deosit... ... ... Issues:
Waiver of pre-deposit of penalty under Section 112(a) of the Customs Act, 1962 based on forged/tampered licenses in clearing consignments.

Analysis:
The judgment pertains to a stay petition filed for the waiver of pre-deposit of penalty imposed on the appellant under Section 112(a) of the Customs Act, 1962. The appellant, a Manager of a clearing agent, is alleged to have facilitated in clearing consignments based on forged/tampered licenses. The adjudicating authority's findings, in this case, indicate that the appellant's involvement is in the third round of litigation. Previously, the Tribunal directed the authority to provide the forged/tampered licenses and invoices forming the basis of duty liability. However, these documents were not available even during investigations, raising doubts about their existence. The case revolves around the clearance of consignments using forged/tampered licenses, which are crucial for the defense of the appellant. Since these documents were not produced, the appellant is granted the waiver of pre-deposit as he needs to defend against the charges related to the import of goods cleared using such documents.

The Tribunal, after considering the facts and circumstances, allows the application for the waiver of pre-deposit of the amounts involved and stays the recovery until the disposal of the appeal. This decision is based on the crucial aspect that the forged/tampered licenses, central to the case, were not available for the appellant's defense. The waiver is granted to ensure the appellant can adequately defend himself against the allegations of involvement in the import of goods cleared through the use of fraudulent documents. The judgment emphasizes the importance of access to necessary documents for a fair defense in legal proceedings, leading to the grant of the waiver in this case. Stay petition – waiver of pre deposit of penalty u/s 112(a) – department contended that assessee had facilitated in clearing the consignments on the basis of forged/ tampered licenses – Held that:- The forged/ tampered licenses were not available even at the time of investigations and hence could not be produced before the bench - forged/ tampered license were not made available by the department – assessee had made a prima facie case in its favour – application for complete waiver of pre deosit allowed – decided in favour of assessee. Shri Sanjay Gandhi Versus Commissioner of Customs Kandla
Customs
2013 (8) TMI 691 - CESTAT AHMEDABAD - TMI
CESTAT AHMEDABAD - AT
Dated:- 15-4-2013
Appeal No.:C/317 of 2012 - -
Customs
Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant: Shri P.V. Seth, Advocate For the Respondent: Shri P.N. Sarvaiya, A.R. ORDER Per: Mr. M.V. Ravindaran; This stay petition is filed for the waiver of pre-deposit of penalty imposed by the adjudicating authority on the appellant under the provisions of Section 112(a) of the Customs Act, 1962. 2. Heard both sides and perused the record. 3. On perusal of record, we find that the appellant is Manager of M/s. Shree Maruti Shipping Services, a clearing agent, who cleared the consignments from Kandla Port. It is the case of the revenue that the appellant has facilitated in clearing the consignments on the basis of forged/ tampered licenses. The findings of the adjudicating authority in this case, is in third round of litigation. In the earlier round, we directed the adjudicating authority to make available the forged/ tampered license and invoices on the basis of which the duty liability has been demanded from the assessee. It is seen from the findings recorded by the adjudicating authority, the forged/ tampered licenses were not available even at the time of investigations and hence could not be produced before the bench. We find from the show cause notice and earlier round of litigation, the entire case starts on the basis of clearance of consignments based on forged/ tampered license. If the same is not available for the defence of the assessee or the person, we find, the appellant has made out a case for the waiver of pre-deposit of the amounts involved, as he has to defend himself against the charges of being involved in the import of goods which were cleared by producing forged/ tampered invoices. 4. Accordingly, in view of the foregoing, application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal. (Dictated and pronounced in the Court)
Case laws, Decisions, Judgements, Orders