SH. MAHABIR PRASAD GOENKA Vs. CC, NEW DELHI

JUDGEMENT

(1.) Vide Stay Order S/72 -74/2001 -NB dated 7.2.2001, the Tribunal, inter alia, directed the applicant above named to deposit a sum of Rupees One Lakh out of the total penalty of Rs. 15 Lakhs imposed by the adjudicating authority. An application for rectification of mistake was filed and disposed of by Misc. Order M/101/2001 -NB dated 25.5.2001, holding that the ROM application is not maintainable as it arises out an order passed in terms of Section 129E of the Customs Act, while Section 129B(2) provides for filing such application arising only out of an order passed in terms of Section 129(1) of the Customs Act. The applicants moved the Hon'ble Delhi High Court, which directed the Tribunal to hear the ROM application. This is how the matter has come before us.

(2.) We have heard Shri Rajesh Tiku, Learned Advocate and Shri Ashok Kumar, Learned DR. We note that in paragraph 11.2 of the adjudication order the Commissioner has held the applicant liable to penal action on the ground that it was he who fabricated Invoice No. 270 dated 23.1.98 for 11 bales of 6530 mtrs. of polyester curtain cloth. We note that the present case relates to Chinese silk fabrics and issue of illegal import of polyester curtain cloth is not the subject -matter of the present adjudication. Since there is no finding in the impugned order regarding involvement of the applicant in illegal import of the goods in question, namely, Chinese silk fabrics, we agree with the Learned Counsel that there is an error in the stay order in holding that the applicant has not made out a strong prima facie case for total waiver. Hence we rectify the mistake by dispensing with the requirement of pre -deposit of penalty by the applicant and staying thereof pending the appeal.

(3.) The ROM application is hereby allowed.