9911796707
TMI Blog2009 (2) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-deposit. The statute requires deposit of an amount disputed whereafter only the appeal preferred before the Tribunal could be heard. The appellant filed an application under Section 129 of the Customs, 1962 (for short "1962 Act) and sought waiver of the said application. The appeal has been disposed of by the Tribunal vide order dated 13.10.2008 (impugned in this appeal) directing the appellant to deposit a sum of Rs.15 crores in addition to Rs.1.50 crores already deposited by it. It is this order, aggrieved whereagainst the present appeal has arisen. The facts, in brief, are that the M/S Novamet Industries-appellant no.1 is a partnership firm (for short "the firm") whereof appellant nos.2 & 3 are the partners. The firm is 100% export oriented unit engaged in the business of segregation and separation of ferrous & non-ferrous waste and scrape i.e. Copper Scrap, Aluminum Scrap, Lead Scrap and other scrap from mixed Copper Cable Scrap, Copper Lead Cable Scrap and mixed cable scrap etc. Appellant no.1 was issued a notice dated 10.3.2006 by the Directorate of Revenue Intelligence alleging inter alia, in brief, as under: - (a) "The importer M/s NI failed to fulfill conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so recovered were diverted into domestic market illegally and to account for the recovered material in quantity terms, items having no value or negligible value were shown to have been produced and reflected in the statutory records. The failure to maintain proper records was in violation of the condition (3) of the Customs notification under which the goods were imported duty free. (iv) NI has imported copper scrap (Berry), which is pure scrap of copper wire and was the final product for the EOU. The EOUs are allowed to import ...........................products itself. The final product was imported by mis-declaring the same as copper cable scrap. (v) The duty free imports were allowed as per notifications for export purpose. NI mis-declared the value of imported goods as Rs.16,91,53,105/- instead of actual value of Rs.57,99,49,944/-. By resorting to mis-declaration of value of imported goods, manipulation of statutory records and by clearing the differential copper content I the DTA without payment of duty, NI grossly violated the conditions provisions of notifications mentioned above and Export and Import Policy. In view of these violations of the conditions/provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain proper and genuine detailed accounts of all important and indigenous goods used in the manufacturing process and operations in proper form including those remaining in stock an those sent outside under their obligation. (v) NI failed to fulfill the export obligation and conditions stipulated in Customs/Central Excise Notifications, as amended, under which the specified goods have been imported/sourced, as well as the Import-Export Policy as amended from time to time. (vi) NI failed to ensure that only goods, which were allowed to be removed into DTA on payment of duty were so removed and removed goods clandestinely without payment of duty leviable on such articles under Section 3 of the Central Excise Act, 1944." Appellant no.1, Vinay Jain filed Civil Misc. Writ Petition No.237 of 2007 challenging the said notice and alleging that certain documents are needed by the appellant to submit effective reply but not being supplied filed writ petition no.2378 of 2007 before this Court on 26.2.2007. Thereafter the authorities passed the assessment order dated 28.2.2007/13.3.2007, which was also challenged by the appellant by moving amendment application. The aforesaid writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of filing appeal before this Court under Section 130 of the Customs Act. Consequently, the present appeal has been preferred. Shri Bharatji Agarwal, learned Senior Counsel vehemently contended that in order to see whether the appellant is entitled for waiver or not, the condition precedent is "undue hardship" of the appellant and if it exists, the Tribunal is under an obligation to grant waiver in respect of pre-deposit of the amount though it may impose certain conditions for protecting interest of the revenue. He contends that while considering the case of undue hardship one of the relevant facets thereof is the existence of a prima facie case. He stated that certain documents were relied by the respondent-department though those documents were not made available to him. Even the author of the document or whose statement was relied not examined or alleged to be cross-examined despite request and, therefore, reliance thereof is wholly illegal. He further contended that the inquiry report in respect of foreign parties were relied upon though the documents mentioned in such inquiry reports were not supplied despite demand and, therefore, the entire proceeding were vitiated in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.30 crores under Section 125 of the Customs Act; (d) Penalty of Rs.27,10,90,863/- under Section 114A of the Customs Act; (e) Confirmed Central Excise Duty demand of Rs.25,95,08,555/- along with interest; (f) Penalty of Rs.25,95,08,555/- under Section 11AC of Central Excise Act read with Rule 25 (1) of the Central Excise Act, 2002; (g) Penalty of Rs.15 crores on Vinay Jain, Rs.15 Crores on Shri Satish Bhalla Rs.5 Crores on Mrs. Sangeeta Bhalla under Rule 26 of the Central Excise Rules, 2002; (h) Penalty of Rs.27,10,90,863/- on Shri Vinay Jain, Rs.27,10,90,863/- on Shri Satish Bhalla and Rs.27,10,90,863/- on Mrs. Sangeeta Bhalla under Section 112 read with Section 114A of Customs Act, 1962. Before the Tribunal it appears that the learned counsel for the appellant while arguing application seeking waiver under Section 35F of the Central Excise Act and 129E of the Customs Act has advanced his argument only on the following grounds, as are noticed by the Tribunal in para 2.1 of its order impugned in this appeal and it would be useful to reproduced as under: - (1)"There is no allegation that the Net Foreign Earning (NFE) has not been achieved by NI. Though the show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal shows that the argument, which have been raised before this Court in the present appeal, were either raised or argued. In the absence of the issues, which were not rake up before the Tribunal, we fail to understand as to how the appellant can be permitted to make those issues in this appeal particularly when they are the issues involving investigation into facts or mixed questions of facts and law. Even otherwise, the submission that the documents have been relied on without permitting the appellant to cross-examine the author on such document and this vitiate the entire order of the Commissioner, cannot be accepted inasmuch as there is nothing on record to show that at any point of time the appellant disputed the correctness of such document or placed any material, which may have contradicted the documents relied by the revenue before the Commissioner. In such circumstances, in our view, merely if the author of the documents has not been cross-examined, it cannot vitiate the order. The three judgments relied by the learned counsel for the appellant have no application to the facts and circumstances of the case and perusal thereof would show that the same were in the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter written by M/S Universal Agencies. If the Collector can accept a statement allegedly made by a partner of the Universal Agencies which is not confirmed by his oral evidence in the inquiry and not subjected to cross-examination, we fail to understand how he could reject the letter signed by the very same person wherein he has given a diametrically opposed statement. In our opinion, the Collector on this point has used a different yardstick in assessing the evidence of Shri Sunny P. Kunnath" Moreover, from the substantial questions of law framed by the appellant we find that all there are basically those issues, which are yet to be decided in the appeal pending before the Tribunal and are not in concerned with the question as to whether the Tribunal in passing the order under Section 35F of the Central Excise Act and 129E of the Customs Act in respect to waiver has validly exercised its jurisdiction or not. Therefore, in our view no substantial question of law has actually been framed by the appellant in this appeal. In respect to the order impugned in this appeal the arguments raised by the appellants' counsel touching the merit of the issues, which are referable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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