TMI Blog2006 (4) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as 'the Act, 1962'), the notices were issued to certain parties including to the present petitioners mainly on the ground of certain misdeclaration as to the narration of the goods imported and for the ground of over-invoices, so far as valuation is concerned and consequentially for the misuse of the foreign exchange. The goods were imported by M/s. Vaishal Impex. The goods were of the nature of Software, Compact Disks. The L/C was opened by the petitioner of Special Civil Application No.1569 of 2006 in the proceedings under the Customs Act, 1962. Several contentions were raised by the petitioner before the concerned officer under the Act, 1962. Thereafter, order-in-original was passed by the Commissioner of Customs and thereafter appeals were preferred by petitioners before the CESTAT, Bangalore. The Tribunal has waived deposit of the amount. 4. It is also submitted by learned Senior Counsel appearing for the petitioners that so far as notices issued under the Foreign Exchange Management Act, 1999 (hereinafter referred to as 'the Act, 1999'), the issue involved is already sub-judice under the Customs Act where there is any misuse of the foreign exchange or not. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. No such opportunity was given to the petitioner. Thus, one sided version or unilateral version of the officials of D.R.I. has been relieved upon which has led to make a presumption against the petitioner in absence of any direct evidence of misusing foreign exchange by the petitioner. It is also submitted by the learned Senior Advocate appearing for the petitioners that in fact, the order passed by the Additional Director General is an ex parte order, in fact, the application was given on 16th November, 2004 for keeping the adjudication proceedings in abeyance and the predecessor of the officer who has passed the first order has, after hearing the matter, not passed the final order, but thereafter, there was a change in officer and newly appointed officer after giving only one date of hearing, passed the impugned order dated 4th May, 2005 (Annexure 'F' to the memo of petition). In fact, the petitioners were heard by the Additional Director General long back. The application was given on 16th November, 2004 and the order was passed on 4th May, 2005. Thus, both the requests viz., to keep the proceedings in abeyance till the proceedings under the Customs Act, 1962, are finall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 35F of the Central Excise Act, 1944. By the impugned order, the appellants have been directed to deposit an amount of Rs. 30 lakhs by way of pre-deposit. The reasoning given in support of such other is wholly unsatisfactory. The appellate authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate Authority should have addressed its mind to the prima facie merits of the appellants' case and upon being satisfied of the same determined the quantum of deposit taking into consideration the financial hardship and other such relevant factors. 3. We accordingly set aside the decision of the High Court as well as the impugned order dated 14-8-2002 and remand the matter back to the appellate authority for redetermining the issue under Section 35F of the Act after affording an opportunity of hearing to the parties. 4. The appeal is allowed without any order as to costs, (Emphasis supplied) 6. After observing as stated herein above, the order was set aside of the pre-deposit and the matter was remanded for redetermination of the issue. In the facts of the present case also, it is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested in the petition to get the waiver of pre-deposit by 100% in all the cases. It is also submitted by the learned Counsel appearing for respondent No. 2 that looking to the facts and circumstances of the case, the Tribunal has arrived at a conclusion that the petitioners ought to deposit 100% of the amount as ordered by the Additional Director General at Annexure ' F' and has also relied upon the judgment delivered by this Court (Coram B.J. Shethna and Sharad D. Dave, JJ.) in Sterlite Industries (India) Ltd. v. Union of India Anr. reported in 2005 (2) G.L.R. 1704 and the judgment delivered by the Hon'ble Supreme Court in the case Asst. Collector v. Dunlop India Ltd. reported in 1985 (19) E.L.T. 22 (S.C.). In view of these two judgments, the petitions may not be interfered by this Court. 9. I have heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order at Annexure 'A' as well as order at Annexure ' F' for the following facts and reasons: (i) The notice has been issued under the Customs Act, 1962 which takes in its sweep not only the question as to the over-valuation and as to the breach of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners, it cannot be concluded by the authorities under Act, 1999 that there was misuse of the foreign exchange by the petitioners. (iii) Though this point was raised before the Additional Director General by the petitioners to keep the proceedings in abeyance, there is not a whisper in the whole order passed by the 'Additional Director General (Annexure 'F'). The deciding authority cannot, turn deaf ear to, the important legal submission of the petitioners, which affects the very root of the case under the Act, 1999. (iv) The petitioners have no other weapon in their hands except the cross-examination of the Officials of D.R.I. for finding out the truth. Cross-examination is a weapon in the hands of the petitioners. It appears from the facts of the present case that though application was preferred for cross-examination for Officials of D.R.I., who participated in investigation of the case, Additional Director General who passed the first order (Annexure 'F' to the memo of the petition) has again not dealt with the said requests while passing the order. The specific requests of the petitioner for cross-examination, cannot be brushed aside for no reason. Looking to the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction with Additional Director General under the Act, 1999 to adjudicate upon the matter under Section 49(3) of the Act, 1999, which is labelled by the Appellate Authority as 'Sunset Clause'. It has been decided by the Hon'ble Supreme Court in Mehsana District Co-operative Milk P.U. Ltd. v. Union of India reported in 2003 (154) E.L.T. 347 (S.C.) that while passing the order of pre-deposit, the Tribunal had not properly appreciated the prima facie merits and the impugned order was quashed and set aside and the matter was remanded to the Appellate Authority for redetermination of the issue under Section 35F of the Central Excise Act, 1944. Looking to the provisions of Section 19 of the Act, 1999 and the provisions of Section 35F of the Central Excise Act, 1944, they are at para materia with each other. Looking to the facts of the present case, there is a prima facie case in favour of the petitioners, especially, when the adjudication under the Customs Act, 1962 is pending before the CESTAT, Bangalore and especially, when there is a clear finding on the part of the Additional Director General as stated herein above as to no direct evidence brought on record to prove the actual ..... X X X X Extracts X X X X X X X X Extracts X X X X
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