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2009 (9) TMI 156 - AT - CustomsOrder of Confiscation of the imported ATM machines and terminal computers Final disposal of appeal itself not proper at stay stage - misdeclaration of value and fraud statements accepting misdeclaration not retracted undervaluation not challenged prima facie case for demand of duty and penalty appellant admitted that what was imported was modem only so question of remanding the matter for ascertaining correct classification not arises Whether this case is fit for remand without pre-deposit at the stay stage Case remanded by Member (Judicial) for denovo adjusidcation while hearg stay application without examinng merits Member (Technical) noting that order was reserved and during hearing remand aspect not before Departmental Representative and matter argued only for stay petition - held that remand cannot be ordered without putting other side to notice and noting its objections who may be ill prepared for such eventuality reasoning of Member (Technical) against allowing appeals at stay stage by way of remand without pre-deposit, agreed with by Third Member Pre-deposit directed However, bank not being party to mis-declartion, entitled to waiver of pre-deposit of penalty Indian subsidiary of foreign supplier prima facie liable to penalty as entire conspiracy was hatched to overcome import restrictions but penalty cannot be imposed on company u/s 112(b) of Customs Act, 1962 since destruction of documents not contested in writ appeal and hence plea on violation of natural justice not acceptable
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