ORDER
P.G. Chacko, Member (J)
1. The lower authorities confiscated five weaving looms [second hand machinery] with option for redemption. They also imposed a penalty of Rs. 2.00/- lakhs on the importer [M/s. Shri Raam Tex] and a personal penalty of Rs. l.00/- lakh on Shri C. Easwaran [one of the partners of the firm]. The present applications seek waiver of pre-deposit and stay of recovery in respect of the penalty amounts.
2. After examining the records, we find that the second hand machinery was imported and sought to be cleared under OGL by Shri Raam Tex in September, 2003, claiming that the machinery was less than ten years old. The Chartered Engineer’s certificate [obtained from abroad] indicated the year of make of the machinery as 1994. Apparently, this certificate was not accepted by the Customs authorities, who, upon inspection of the goods, noted that years ranging from 1971-1978 had been displayed on the fly wheels of the machines and the years 1978 & 79 were displayed on the beam chests of the machines. On the basis of this observation, the machinery imported by M/s. Shri Raam Tex was held to be more than ten years old and accordingly found to be prohibited for import on account of such goods figuring in the negative list. Hence the order of confiscation and penalty.
3. It appears from the submissions of learned consultant as well as from the records before us that the cast iron body of the looms was bearing engravings of the year ‘1994’. However, it appears, this evidence was not successfully put up before the lower authorities. Those authorities relied on a confessional statement of Shri C. Easwaran, who, stated inter alia that the machinery was actually about 25 years old. The authorities noted that this statement had not been retracted. It also appears to us that any retraction of this confessional statement was made only at the stage of adjudication of the case. Learned Consultant has, however, pleaded prima facie case on the strength of two decisions of this Tribunal cited below:
(i) Anish Kumar Spinning Mills v. CC 2004 (172) E.L.T. 394 (Tri. – Chennai)
(ii) Office Tec Industries v. CC 2004 (172) E.L.T. 480 (Tri. – Del.)
4. Learned Jt. CDR has contested the above claim of the Consultant and has urged that the appellants be directed to pre-deposit the entire amount of penalty.
5. After giving careful consideration to the submissions/ we are of the view that the appellants have not made out prima facie case against imposition of penalties on them, though they seem to have placed on record a reasonable challenge as regards the quanta of penalties. In holding this view, we have taken into account the confessional statement of Shri C. Easwaran, which was, admittedly, not retracted till adjudication of the dispute. The case law cited by learned Consultant cannot, apparently, be applied to the particular facts of this case. Accordingly, we direct M/s. Shri Raam Tex to pre-deposit 25% of the penalty amount imposed on them within four weeks from today. In the event of due compliance with this direction, there will be waiver of pre-deposit and stay of recovery in respect of the balance amount of penalty for the said party as well as in respect of the amount of penalty imposed on Shri C. Easwaran. Report compliance on 17th April, 2006.
(Dictated and pronounced in open Court)