TaxTMI 
TaxTMI 
2016 (1) TMI 428
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....ned Senior Panel Counsel appearing for the first respondent. 3. It appears that in the course of an investigation, it was found out that imports of mulberry raw silk/silk yarn of 27,020.93 Kgs valued at Rs. 3,36,10,640/- were made duty free, using three advance authorisations of one M/s.Kalp Impex of Surat by one Ramanand Surekha, owner of Goyal Enterprises of Bangalore. It was claimed that by diverting the goods to Bangalore without being transported to Surat, the Customs was defrauded. Therefore, the entire quantity of mulberry raw silk/silk yarn imported under nine Bills of Entry were confiscated. A redemption fine of Rs. 67 lakhs was imposed under Section 125 of the Customs Act, 1962. Customs duty of more than Rs. 1 Crore was imposed enforcing the bond executed for imort of goods duty free. Penalties were also levied upon seven persons under Section 112(a) or 112(b) of the Customs Act, 1962. 4. Aggrieved by the common order in original passed on 27.3.2014 against various persons, 21 independent appeals came to be filed before the Customs, Excise and Service Tax Appellate Tribunal. The appeals were accompanied by applications for waiver of pre-deposit condition and also fo....
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....014 in C/41376/2014 Dipal J.Shah 3,00,000/- 50,000/- 9 C/S/41663/2014 in C/41377/2014 Dipal J.Shah 2,00,000/- 30,000/- 10 C/S/41366/2014 in C/41142/2014 Masterstroke Freight Forwarders P.Ltd. 4,00,000/- 3,00,000/- 11 C/S/41841/2014 in C/41584/2014 Ramanand Surekha 10,00,000/- 10,00,000/- 12 C/S/41858/2014 in C/41585/2014 Prachi Silks 80,97,134/- 20,00,000/- 80,00,000/- 13 C/S/41843/2014 in C/41586/2014 Nupur Impex 1,48,47,512/- 37,00,000/- 1,50,00,000/- 14 C/S/41845/2014 in C/41587/2014 Meticulor Forwarders 15,00,000/- 10,00,000/- 15 C/S/41846/2014 in C/41590/2014 Prachi Silks 10,94,412/- 2,00,000/- 10,00,000/- 16 C/S/41848/2014 in C/41591/2014 Mahalaxmi Silk Trading 44,33,270/- 10,00,000/- 50,00,000/- 17 C/S/41850/2014 in C/41592/2014 Radhey Shyam Rander 5,00,000/- 5,00,000/- 18 C/S/41852/2014 in C/41593/2014 Goyal Enterprises 1,49,24,031/- 25,00,000/- 1,50,00,000/- 19 C/S/41854/2014 in C/41594/2014 Hemanth Kumar 5,00,000/- 5,....
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....f the Revenue. 13. In other words, the Proviso to Section 129E is not akin to the provisions of Order XXXIX Rules 1 and 2 of the Civil Procedure Code, where an application for injunction is required to be decided on the touchstone of prima facie case, balance of convenience and relative hardship. But, at the same time, while considering the application for waiver, the Appellate Authority cannot completely ignore the existence or absence of a prima facie case. Courts have read the parameters of prima facie case into the issue of undue hardship. 14. In Vijay Prakash D.Mehta Vs. Collector of Customs [AIR 1988 SC 2010], the Supreme Court indicated that all relevant factors such as the probability of a prima facie case for the appellants, the conduct of the parties, etc., can be taken into account, while deciding the question of undue hardship. At the same time, the Supreme Court cautioned in Benara Volves Vs. C.C.E. [2006 (13) SCC 347], that merely upon the establishment of a prima facie case, interim orders of protection cannot be passed. However, the Court also observed that if, upon a cursory glance, it appears that the demand raised has no legs to stand, it would be desirable....
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....tion is primarily cast upon any person seeking waiver to specifically plead the circumstances, in which, he is placed. But unfortunately, none of the appellants fulfilled this most fundamental requirement, in their application for waiver. 22. As a matter of fact, all the applications for waiver filed by the appellants herein contained six paragraphs. The first paragraph gave details of the duty levied and the penalty imposed. The second paragraph contained a claim that prima facie no demand can be made against them, as they were not importers. The third paragraph made a reference to the grounds of appeal. The fourth paragraph attacked the order in original as an example of gross judicial indiscipline. While doing so, a very weak appeal, that could at the most be termed as apology of a plea of undue hardship, was made. The relevant portion of paragraph 4 of the application for waiver is extracted as follows : "Under the said circumstances, the appellants submit that calling upon them to pre-deposit any amounts towards hearing of the captioned appeal would be an onerous one, particularly when the balance of convenience and prima facie case is in favour of the applicants. ....
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....nly caused evasion of customs duty, but no foreign exchange came to India without any export of finished goods made. 22.2. The high sea sales prima facie appears to be a premeditated design by importers in collusion with Vishal Agarwal to defraud customs. Importers sent money from Bangalore to Surat routing through angadias. Such money parked in different bank accounts maintained in the name of benamidars, some of whom were holders of advance authorisation. Such money again reverted back as sales consideration of imported goods to the original importers pretending to be high seas sellers. High seas sale was nothing but a cloak and the importers masqueraded as high seas sellers. Ultimate beneficiary of fraud was importers and Vishal Agarwal. The advance authorisation agreements executed by benamidars were no man of means being employees of Vishal Agarwal. 22.3. Prima facie, it also appears that advance authorisations were obtained fraudulently without any plant and machinery installed. False certificates issued by the Chartered Accountant Dipal J.Shah were utilized to get advance authorisations. Such authorisations were used to clear the imports duty free paying co....