ORDER
T. Anjaneyulu, Member (J)
1. All these petitions are interlinked. As such, they are being disposed off by a common order.
2. There is a delay of 21 days in filing the appeal. Therefore, the applicants pray for condonation of delay on the following grounds.
3. As the Commissioner did not pass any order on the original release of the seized goods in spite of repeated applications filed before him, they have filed an application before the Settlement Commission on 11.06.2004. Thereafter, the Commissioner passed the impugned Order-in-Original on 30.06.2004, which is received by the appellants on 17.07.2004. The Settlement Commission on 14.09.2004 declined admission on the ground of Section 123 of the Customs Act applying to the seized goods and passed final order dated 19.10.2004, which is received on 04.11.2004. As the Settlement Commission rejected the application, the appellants filed the present appeal against the Order-in-Original dated 30.06.2004. The date for filing appeal expires on 17.10.2004, as such there is a delay of 21 days.
4. The applicants are under bonafide belief that the time spent before the Settlement Commission would be deleted and condoned. They rely upon the decision reported in 2002 (147) ELT 362 (Tri. – Del.) in the case of M/s. Shiwalya Spinning & Weaving Mills (P) Ltd. v. Commissioner of Customs, Amristar.
5. Having considered the aforesaid circumstances and in the light of the decision of the Supreme Court, the delay of 21 days is hereby deleted for filing this appeal.
6. The applicants seek waiver of pre-deposit amount and to stay its recovery in the second application.
7. The applicants were issued Show Cause Notice dated 11.07.2003 alleging that they have purchased imported polyester yarn of foreign origin without payment of customs duty, without cover of proper documents and failed to discharge the burden cast upon them under Section 123 of the Customs Act, read with Notification No. 52/68-Cus as amended, in view of the said imported raw materials having been imported by one M/s. Garfield Textiles & Garments, Plot No. 19, Shimpi, Mangaldas Park, Navapur, Dist. Nandurbar, without payment of duty by furnishing forged documents. The applicants had purchased the goods from Shri Ashrafbhai Rajwani, a yarn broker in Surat. Therefore, the applicants’ yarn broker have suppressed all these facts and willful misstatement with an intention to evade Customs duty thus rendering the goods for confiscation under Section 111 (J) and (o) and also liable for penalty under Section 112. The applicants have paid duty of Rs. 4,98,554/- vide two TR-6 challans dated 12/13.12.2003 and applied for provisional release of the seized goods.
8. The Commissioner on adjudicating the matter passed an impugned order on 30.06.2004, imposing penalty of Rs. 1,00,000/-.
9. The applicants have prima facie case since they have paid full duty of Rs. 4,98,554/-, except penalty amount of Rs. 1,00,000/-. They rely upon the decision reported in AIR 1969-SC 430 = (1969) 71 ITR 815 (SC) and also the case related to Smithkline Beecham Consumer Health Care Ltd. v. CCE (A) reported in 2000 (117) ELT 539 (Cal.).
10. Having considered the fact that the appellants have deposited full duty amount, except payment of penalty amount, they are entitled for waiver of pre-deposit of penalty amount and to stay its recovery. Accordingly, stay is hereby granted, pending disposal of the appeal.
11. The third application of the applicants is to grant early hearing in the appeal. In the instant case, it is seen that the goods are under seizure. The applicants prayed for release of the goods before the Commissioner as well as before the Settlement Commission, but they were not successful, therefore, it is decided to grant early hearing in the appeal in the interest of justice. Accordingly, early hearing is fixed in the appeal on 06.04.2005.
12. The three applications filed by the appellants are disposed off in the above terms.
(Pronounced in Court)