1997(11)LCX0130

IN THE CEGAT, COURT NO. IV, NEW DELHI

S/Shri G.A. Brahma Deva, Member (J) and J.H. Joglekar, Member (T)

ETCHO PROCESS INTERNATIONAL

Versus

COLLECTOR OF CUSTOMS, NEW DELHI

Stay Order No. E/75/97-D, dated 21-11-1997 in Stay Application No. C/Stay/948/97-D in Appeal No. C/338/97-D

Advocated By : Shri K.K. Anand, Advocate, for the Appellant.

Shri Satnam Singh, SDR, for the Respondent.

[Order per : G.A. Brahma Deva, Member (J)]. - This stay application is filed by the applicants for the waiver of pre-deposit of duty of Rs. 6,89,540/- and penalty of Rs. 2 lakhs and stay of the recovery proceedings. When this case was called in the morning session, Shri Satnam Singh appearing for the Revenue expressed his inability to argue since he was not served with the supplementary cause list in which this matter was shown. Accordingly the matter was passed over. In the afternoon session again Shri Satnam Singh submits that he has not received the file from the relevant dealing clerk. Since this is a stay matter, we have no option but to proceed with the matter after hearing Shri K.K. Anand, ld. Advocate for the applicants.

2. It was submitted by Shri Anand that the item in question (Transfer Paper) Declacomania Paper Transfers is classifiable under Heading 4908.10 as claimed by the party or under 4809.90 as per the department is an issue to be considered in this case. He fairly conceded that this matter is arguable. He, however, stated that apart from the merits of the case, an amount of Rs. 3 lakhs has already been deposited in pursuance of the Court’s direction before passing the order and accordingly he submitted that the Collector should have given deduction of Rs. 3 lakhs out of disputed duty amount, instead the Collector has adjusted the amount towards the redemption fine imposed on the appellants. Further, he stated that penalty of Rs. 2 lakhs was not justified. No mens rea has been established and on the other hand all the previous imports were classified under Chapter 49. Shri Anand also submitted that financial position of the applicants is not that good and if the applicants are asked to pay the amount in question it would cause undue hardship. He said that the concern is owned by a lady having a net income of Rs. 93,000/- for the year ending 31-3-1996. He has not placed any up-to-date balance sheet for our perusal. Furthermore, to a query from the Bench with reference to the financial position of the family members other than the lady, he has not placed any evidence and submitted that he has no information.

3. We have considered the submissions. Merits and demerits with reference to the classification of the product are to be examined in detail and that can be done at the time of regular hearing. On the merits it cannot be said that prima facie case is in favour of the party to grant stay as prayed for. In fact, on perusal of the records prima facie case on merits seems to be in the favour of the Revenue. As regards payment of Rs. 3 lakhs, we find that the Collector has adjusted it towards the redemption fine. That aspect cannot be looked into at this stage while dealing with the matter with reference to Section 129E of the Customs Act. However, taking overall facts and circumstances of the case and giving credence to the submissions made by the ld. Counsel particularly with reference to the financial position of the applicants, we are of the view that ends of justice would be met if the applicants are asked to pay the duty amount in question. Accordingly we direct the applicants to deposit the duty amount of Rs. 6,89,540/- on or before 30-1-1998. Subject to compliance, penalty amount of Rs. 2 lakhs is dispensed with. Matter to come up for reporting compliance on 10-2-1998. If the amount as stated above is not deposited before the said date, the appeal will be dismissed for non-compliance without any further notice. Ordered accordingly.

_______

Equivalent 1998 (97) ELT 376 (Tribunal)