ORDER
Moheb Ali M., Member (T)
1. The stay application arises out of the order of the Commissioner of Customs (Import) dated 10.3.2003 wherein he ordered that a sum of Rs. 11,77,233/- be appropriated from the duty deposited by the applicant at the time of provisional release of the goods in dispute. He also ordered that redemption fine of Rs. 1,88,000/- and a penalty of Rs. 47,446/- be recovered from the bank guarantee executed by the applicant at the time of provisional release of the seized goods. In the stay application, the applicants pray, pending hearing and disposal of the appeal, the operation of the impugned order be stayed and the department be restrained from taking out any proceedings for the recovery of the said amounts of penalty and fine. During the course of hearing, it transpired that the department has encashed the bank guarantee executed at the time of provisional release of the seized goods and obtained the draft from the bank concerned, in pursuance of the impugned order. Now the plea of the applicants is that they are prepared to execute a fresh guarantee for the fine and penalty imposed and the bank draft should be returned to the bank. The applicants pleaded that since the full recovery of duty amount has already been made, recovery of fine and penalty would constitute undue hardship, since they have a prima facie case in their favour.
2. Briefly, the issue pertains to import of stainless steel coils / sheets cleared from Chennai port under DEEC scheme with an actual user condition. The allegation is that the importers have diverted the imported goods in the local market at Mumbai without utilising the same in the manufacture of export products. The investigation appears to have revealed that there was a diversion of stainless steel coils / sheets imported duty free and cleared from Chennai port. The Commissioner in the impugned order confiscated the goods, demanded the duty involved and imposed a penalty as the conditions of the notification were violated in respect of the goods imported without payment of duty under the DEEC scheme.
3. The applicants pleaded that they have a prima facie case in their favour and since they have deposited the duty involved at the time of provisional release, the department may be restrained from encashing the bank guarantee to recover the fine and penalty.
4. On hearing both sides for some time, we notice that the applicants’ plea that they may be allowed to furnish a fresh bank guarantee covering the fine and penalty can be accepted till the appeal is decided, in lieu of deposit.
5. Accordingly, we order that upon furnishing a fresh bank guarantee by the applicants for the fine and penalty involved, the stay against the operation of the impugned order is granted. The department is directed to return the draft obtained from the bank upon the applicants fulfilling this condition.
6. Ordered accordingly.