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2016 (9) TMI 316 - KERALA HIGH COURT

2016 (9) TMI 316 - KERALA HIGH COURT - 2016 (341) E.L.T. 7 (Ker.) - Maintainability of the writ petition - waiver of pre-deposit - Held that: - the Court will not be justified in conducting an enquiry regarding the maintainability of the writ petition at this stage, especially when the writ petition has been admitted as early as on 19.1.2015 and an interim direction had been issued by the Court, not to reject the appeal during the pendency of this writ petition - writ petition maintainable. - .....

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TIONER : ADVS.SRI.P.RADHAKRISHNAN (1), SRI.MADHU RADHAKRISHNAN, SRI.NELSON JOSEPH, SRI.M.D.JOSEPH FOR THE RESPONDENT : ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC JUDGMENT Petitioner challenges Ext.P10 by which he is called upon to deposit ₹ 50 lakhs within twelve weeks and report compliance on or before 15.1.2015 in order to entertain the appeal. The order is passed in an application submitted by the petitioner for waiver for predeposit for entertaining the appeal. Petitioner had preferred an .....

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posit of ₹ 50 lakhs. 2. Learned counsel for the petitioner submits the issues pertaining to the respective contentions of the petitioner has not been considered in detail by the appellate authority while directing remittance of ₹ 50 lakhs. Petitioner being a small trader, has severe financial difficulty and is unable to remit the amount as directed. 3. On the other hand, the learned counsel for the respondent authorities submits that the writ petition itself is not maintainable and i .....

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a clear finding that a strong case had been made out as far as the claim for ₹ 86 lakhs is concerned. 4. Having heard the learned counsel on either side and having perused the records, in regard to the question of maintainability, I do not think that this Court will be justified in conducting an enquiry regarding the maintainability of the writ petition at this stage, especially when the writ petition has been admitted as early as on 19.1.2015 and an interim direction had been issued by th .....

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the principles of natural justice, observed that there is a strong case made out as far as the demand for ₹ 86 lakhs is concerned. Paragraph 6 of the order, is relevant, which reads as under: 6. After considering the submissions and the impugned order and the submissions of the learned AR, we find that in respect of nine Bills of Entry, it may be said that Revenue has been able to show that the actual transaction value i.e. the payment made for the consignments received to the exporter ab .....

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ve been very simple. The evidence can never be 100% accurate or there can never be 100% proof. In our opinion, the department has been able to show that transaction value was more than what was declared by producing supporting evidences and by applying principle of preponderance of probability it can be definitely stated that the transaction value was more than what was declared. As regards valuation, once transaction value is available, the question of resorting to contemporaneous value does no .....

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resources. We do not expect a person who has evaded tax to bring all his assets in to books of accounts in view of the fact that whatever value was paid over and above the amount declared was illegal and could not have been brought tinto account at all. In illegal transactions, the money earned is never reflected totally. Nevertheless in this case, invoice value has been under-declared and payments are in black, the profit earned within India if properly accounted increases and therefore the fi .....

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the entire amount of customs duty with interest and a portion of the penalty, we consider that if the appellant deposits an amount of 5,00,000- ₹ (rupees fifty lakhs only) within twelve weeks and reports compliance on 15.01.2015, that would be sufficient for hearing the appeal. Accordingly, if the amount is deposited as mentioned above and compliance reported, the requirement of predeposit of balance dues is waived and stay against recovery is granted during the pendency of appeal. 6. On .....

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