TMI Blog2009 (9) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Goel - Rs. 25 lakhs. 2. The above penalties were imposed on the respective persons under Section 112(a) of the Customs Act on the ground that they abetted the offence committed by M/s. Amba Expofab and their proprietor Shri Yogesh Chaltanwala in respect of the goods imported and cleared duty-free by the latter under Advance Licences coupled with Notification No. 43/2002-Cus. issued under the DEEC Scheme. The main party namely M/s. Amba Expo Fab and their proprietor have also filed similar applications which stand adjourned on their request. 3. Examined the records and heard both sides. At the out set, the learned Jt. CDR for the respondent submits that this Bench had ordered pre-deposit in a similar earlier case involving some of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al products to be exported for fulfilment of export obligation in terms of the Advance Licences issued by the DGFT. Relevant Bills of Entry were filed by M/s. Amba Expo Fab through their CHA, Shri Kamal Agarwal. The Advance Licences were held by M/s. Amba Expo Fab. The goods were allowed to be cleared duty-free under the above notification. Subsequent investigation conducted by the department revealed that the goods had not been utilized for the intended purpose and that they had been diverted to the domestic market. The investigations were focused on this aspect. Statements were recorded under Section 108 of the Customs Act from the appellants and others. Some documents were seized from the parties. On the basis of this and other results o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t findings in the Commissioner s order. 10. We have independently examined the relevant records. In his statement, the Chartered Accountant admitted having issued solvency certificate to M/s. Amba Expo Fab, which was used by the latter for making the subject import and clearing the goods duty-free. However, no copy of any such certificate has been brought on record. Instead, another similar certificate issued to one M/s. Jay Bordevi Textiles has been shown to us. We are told that the solvency certificate issued to M/s. Amba Expo Fab was also in the same format. A perusal of these documents indicates that the Chartered Accountant certified the party to be solvent enough to meet liabilities and commitments to another party in respect of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbhajan Singh Sandhu. 13. On examination of the records, we find that it is true that no inculpatory statement of Shri Harbhajan Singh Sandhu was taken note of in the show cause notice, nor relied on in the Commissioner s order. Shri Harbhajan Singh Sandhu wanted to cross-examine three witnesses, who deposed against him under Section 108 of the Customs Act, but this opportunity was not granted. In this factual scenario, we are constrained to hold that Shri Harbhajan Singh Sandhu is entitled to waiver of pre-deposit and stay of recovery in respect of the penalty imposed on him. Ordered accordingly. 14. We have also heard the learned Consultant for the appellant Shri Manoj Omprakash Goel, who has claimed that his case is similar to that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification based on end-use condition. The learned Consultant has argued against the penalty on the strength of two decisions viz. in Laddan Steelware Mfg Co v. Commissioner of Customs, New Delhi, 2009 (231) E.L.T. 621 (Tri. - Del.) and in Ram Gopal Polytex Ltd. and others v. Commissioner of Customs (Adjn), Mumbai 2009-TIOL-187-CESTAT-MUM. We have examined the case law and have found no merits in the submission. We are, therefore, of the view that Shri Manoj Omprakash Goel has failed to make out a prima facie case against the penalty imposed on him and, therefore, he should make a pre-deposit under Section 129 of the Customs Act. 15. We have not come across any plea of financial hardships in this case. 16. We, therefore, direct the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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