TMI Blog2011 (6) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Commissioner - The fact remains that at present, the statement of the Bank official recorded under Section 108 is that the Bank realization certificates that were produced were not genuine - that no case was made out to completely waive the requirement of predeposit. The order of the Tribunal requiring the First Appellant to deposit an amount of Rs.1 crore, therefore, does not warrant interference Regarding the deposit an amount of Rs.25 lakhs - Appellants submitted that the judgment of the Supreme Court does not decide the question as to whether a penalty can be imposed on a partner of the firm when a penalty has already been imposed on the firm - Therefore, the ends of justice would be subserved if the order directing the Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants to predeposit a sum of Rs.1 crore and Rs.25 lakhs under Section 129E of the Customs Act, 1962; (ii) Whether the decision of the Tribunal is inconsistent with the law laid down by the Supreme Court in Siddhachalam Exports Pvt.Ltd. vs. Commissioner of Central Excise. 4. With the consent of Counsel appearing on behalf of the Appellants and the Respondent, the appeal is taken up for hearing and final disposal. 5. The First Appellant, which is a partnership firm, is alleged to have filed fifty shipping bills between January and July 2006, claiming the benefit of a DEPB Scheme, at the I.C.D. Miraj, which fell within the jurisdiction of the Commissioner of Customs, Pune. The shipping bills covered consignments inter alia of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of complete waiver. The Tribunal rejected the contention of the Second Appellant that once a penalty has been imposed on the firm, no penalty can be separately imposed on its partners. 7. Counsel appearing on behalf of the Appellants has sought a waiver of predeposit on the ground that a prima facie case was made out. Before this Court, no submission has been urged on the ground of financial hardship. The submissions on merits are: (i)The judgment of the Supreme Court in Siddhachalam Exports Pvt. Ltd. vs. Commissioner of Central Excise (supra) was cited before the Tribunal and submissions on the basis thereof were recorded in paragraph 4 of the order of the Tribunal. However, while assigning its reasons, the Tribunal has not considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 14. The Tribunal declined to order a remand at this stage for valid reasons. Moreover, it has been submitted that at the prima facie stage, after evaluating the merits of the contentions, the Tribunal reduced the requirement of predeposit by calling upon the First Appellant to deposit Rs.1 crore which order was just and appropriate. 9. The principal submission which has been urged before the Court is based on the decision of the Supreme Court in Siddhachalam Exports Pvt. Ltd. In Siddhachalam, the Supreme Court observed that ordinarily the price received by the exporter in the ordinary course of business, shall be taken to be the transaction value for determining value of goods under export, in the absence of any special circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner. The Tribunal furnished reasons in paragraph 14 as to why it came to the conclusion that it was not inclined to remand the proceedings. The Tribunal noted that against the cancellation of the DEPB licence, an appeal is pending before the Joint Director General of Foreign Trade. The decision of the Appellate Authority would have some bearing on the outcome of the appeal before the Tribunal. The Tribunal found that there was no prima facie case to order a waiver of predeposit. In arriving at this conclusion, the Tribunal noted that (i) The SIIB had gathered particulars of the clearance at the port of discharge, Dubai of the goods which were exported by the First Appellant from India. These particulars included the bills of ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Having considered the rival submissions of the parties, we are of the view that no case has been made out for the grant of a complete waiver of the requirement of predeposit. Prima facie, at this stage, it does emerge that the Bank realization certificates on the basis of which the DEPB benefit has been claimed were found to be forged in large measure. The contention of the Appellants is that subsequent to the order passed by the Commissioner and during the pendency of the proceedings before the Appellate Tribunal, they produced the remittance certificates from the Union Bank of India in support of their contention that monies were in fact received. Admittedly, the remittance certificates were not produced before the Commissioner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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