KULDEEP THAPAR Vs. COMMISSIONER OF CUSTOMS TUGLAKABAD

JUDGEMENT

(1.) This appeal has been filed by the appellant under Sec. 130 of the Customs Act, 1962 (in short "the Act") against the order dtd. 14/12/2016 (Annexure A-8) passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (hereinafter referred to as "the Tribunal") in C/Misc./51664/2016 in C/960/2005-CU(DB), claiming the following substantial questions of law:-

(2.) Put shortly, the facts necessary for adjudication of the instant appeal as narrated therein may be noticed. M/s Bhagwati International, Faridabad was engaged in the business of export of bearing and filed one shipping bill dtd. 23/1/1999 for export of consignment of bearing with the Customs at ICD, Tughlakabad, New Delhi. The Officers of Customs (Preventive) Department intercepted the said consignment on 28/1/1991 which was de-stuffed and examined by the Officers of the Customs. Thereafter, the goods were seized under Sec. 110 of the Act. On 29/1/1999, the residential premises of S/Shri K.K. Kaura and Mohan Lal Thapar, partners of M/s Bhagwati International were searched. The officers also searched shop No. 469/8, Dev Motor Market, Kashmiri Gate, New Delhi. During search, the officers seized bearing balls valuing Rs.1,89,400.00 under Sec. 110 of the Act. The factory premises of M/s Bhagwati International were also searched on 29/1/1999 and seized bearing found in the factory. The statements of Shri K.K. Kaura were also recorded on 30/1/1999 and 31/1/1999. The officers also searched godown of Shri Mohan Lal Thapar and the appellant on 2/2/1999 and recovered ball bearings of foreign origin valuing Rs.3,82,000.00 and Rs.21,82,000.00, respectively and seized the recovered ball bearings. Accordingly, a notice dtd. 19/1/2000 was issued to the appellant to show cause as to why penalty under Ss. 112 and 114 of the Act be not imposed upon him. The appellant filed replies dtd. 21/2/2000 and 15/3/2000 to the said show cause notice. The Adjudicating Authority vide order dtd. 29/8/2005 (Annexure A-1) imposed penalty of Rs.5.00 lakhs upon the appellant and other noticees for misusing the facility of 100% EOU. Feeling aggrieved by the order, Annexure A-1, the appellant filed an appeal along with stay application on 22/11/2005 (Annexure A-2) before the Tribunal. The Tribunal vide order dtd. 10/2/2006 (Annexure A-3) directed the appellant to deposit Rs.1.00 lakh as pre-deposit for hearing of the appeal. M/s Bhagwati International along with its partners challenged the said order before this Court by filing writ petition and this Court dismissed the said writ petition. Thereafter, M/s Bhagwati International approached the Supreme Court who vide order dtd. 7/2/2008 remanded the matter to this Court for fresh consideration. This Court vide order dtd. 3/10/2008 remanded the matter to the Tribunal to pass fresh orders. The Tribunal vide order dtd. 16/11/2009 again directed M/s Bhagwati International and its partners to deposit the said amount as pre-deposit. The Tribunal vide order dtd. 16/3/2011 (Annexure A-4) dismissed the appeal for non-compliance of stay order. M/s Bhagwati International and its partners challenged the orders dtd. 16/11/2009 and 16/3/2011 before this Court by way of CWP-15876-2011. This Court vide order dtd. 3/4/2012 (Annexure A-5) allowed the said writ petition and directed the Tribunal to hear the appeal on merits without insisting for any pre-deposit. In pursuance thereto, the Tribunal restored the appeals. The Tribunal fixed number of hearings in the appeal filed by the appellant and sent various hearing notices (Annexure A-6 Colly). The Tribunal vide order dtd. 17/10/2016 declined to hear the appeal of the appellant as the same was dismissed vide order dtd. 16/3/2011 for non-compliance of stay order. The appellant moved an application dtd. 22/10/2016 (Annexure A-7) before the Tribunal for waiver of pre-deposit in pursuance of the order dtd. 3/4/2012 (Annexure A-5) passed by this Court and to restore the appeal.

(3.) Learned counsel for the appellant submitted that the Tribunal was not justified in dismissing the application of the appellant for non- compliance of stay order especially when this Court vide order dtd. 3/4/2012 (Annexure A-5) had directed the Tribunal to hear the appeals without insisting for any pre-deposit.