ORDER
Jyoti Balasundaram, Member (J)
1. The applications for waiver of pre-deposit of penalty of Rs. 1 lakh on CHA firm and Rs. 5,64,294/- on its partner arise out of the order of the Commissioner of Customs. Briefly stated, it is the case of the Department that both the applicants are liable to penalty as they did not act only as a Clearing House Agent, but facilitated import of cordless telephones, toys and other goods ,as they had a very close relationship with the supplier of the goods at Dubai and the goods have been found to be misdeclared with respect to description and value.
2. We have heard both sides. The plea of the applicants is that the entire case is made out on the basis of the uncorroborated statements of a co-noticee, namely, Shri Shailesh Vagadia – who has stated that after arrival of the goods in India from Tabrez Electronics of Dubai all financial deals were carried out by the partner of the CHA; he would only get the toys and other items were for the CHA firm and the CHA firm themselves used to sell the goods other than toys – and that the case cannot be made out on the basis of a single uncorroborated statement of a co-noticee. The further argument is on financial hardship on the part of both the applicants.
3. The learned DR points out that there is ample evidence on record to justify the involvement of both the applicants and therefore it cannot be said that a strong prima facie case for waiver of pre-deposit of penalty has been made out by either.
4. On consideration of the rival submissions and on perusal of the order we find that the order proceeds on the basis of voluminous evidences and it is not possible for us to take a prima facie view that no penalty can be imposed on the applicants. The further plea that penalty cannot be imposed both on the partner as well as on the partnership firm is not tenable in view of Tribunal decisions that penalty can be imposed both on partner and the partnership firm. At this stage having regard to the facts and circumstances of the case including the plea of financial hardship we direct pre-deposit of Rs. 25,000/- by CHA firm and Rs. 1 lakh by Shri A.R.M Faiyaz, partner of the firm. The amount should be deposited within a period of 8 weeks from today and on such deposit pre-deposit of balance penalty shall stand dispensed with and recovery thereof stayed pending the appeals.
5. Failure to comply with this direction shall result in vacation of stay and dismissal of appeals without prior notice. Compliance to be reported on 14th September, 2004.
(Dictated in the Court)