ORDER
Jyoti Balasundaram, Member (J)
1. The application for waiver of pre-deposit of penalty of Rs. 50,000/- imposed upon M/s. Aasu Textiles Private Limited arises out of the order of the Commissioner of Customs (Preventive). Both the manufacturing unit and the Director have filed a joint application for waiver of pre-deposit of the penalty imposed both on the textile unit as well as its Director. Since separate applications are required along with separate appeals we treat this appeal and stay application as one filed by Aasu Textiles Pvt. Ltd., and it will not be treated as a joint appeal and joint stay application in respect of the Director as well as the manufacturing unit. The Director required to file a separate appeal with stay application.
2. We have heard both sides. We find that Prima facie penalty has been imposed on the textile unit for the reason that nylon polyester yam seized, belongs/to the applicant herein, was smuggled find liable to confiscation under Section 112(d) of the Customs Act. The contention of the applicant that goods are not notified goods and that Section 123 is not applicable as this seizure has been made by Central Excise Officers and not by Customs officers, is Prima facie, not tenable as it is clearly brought out that this seizure is under Section 123 of the Customs Act, 1962 since nylon filament yarn is covered by Section 123 of the Customs Act and as seen from the discussion of the fact/in para 16 of the impugned order the onus lies on the applicant to prove the non-smuggled nature/illicit import of the goods. The Commissioner has dealt with the evidence produced by the applicant, that correlation WHS not possible in the absence of basic specifications about lot numbers, which were missing from the manufacturer’s invoice and further cartons containing seized goods showed description as 75 deniers instead of 70 denier appearing on the supplier’s invoice as well as on the bill of entry claimed for clearance of the goods. Therefore strong Prima facie case for waiver has not been made out by the applicant. Looking to the totality of the facts and circumstances we direct pre-deposit of Rs. 25,000/- towards penalty within four weeks from today and on such deposit, pre-deposit of balance penalty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice.
3. Compliance to be reported on 12th August, 2004.
(Dictated in the Court)