ORDER
Mrs. Archana Wadhwa
1. Both the Stay Petitions praying for dispensation with the condition of predeposit of an amount of Rs. 1.00 lakh (Rupees one lakh) and of Rs. 50,000.00 (Rupees fifty thousand), are taken up together as they arise out of the same Order of the Commissioner of Customs. The said penalties have been imposed upon the importing firm, M/s. Chanduka Exports Ltd. and on Shri Mohan Lal Agarwal as Director of the importing firm, on the ground that they have made efforts to clear the imported Mulberry Raw Silk without payment of duty on the strength of advance licences. It is seen that the applicants/appellants produced advance licences at the time of clearance of Mulberry Raw Silk. However, the investigations conducted by the Customs revealed that they were not having any manufacturing unit and as such, the advance licences given to the applicants/appellants were not valid having been procured by mis-representation of facts. On the other hand, the applicants’/appellants’ contention is that they were having a factory when the advance licences were applied for, but unfortunately, the factory was to be closed at the time of importation of the Raw Silk on account of labour problems. However, the factory was again revived subsequently. All these facts were placed before the Commissioner who failed to consider the same. In any case, submits the learned Advocate, Shri P.K. Das appearing for the applicants, the Raw Silk was ultimately cleared against the special import licence on payment of duty. As such, the imposition of personal penalties upon the applicants/appellants on the alleged ground that an effort to clear the goods without payment of duty, was not warranted.
2. Countering the prayers in the Applications, Shri V.K. Chaturvedi, learned S.D.R. for the Revenue, submits that initially the applicants/appellants had produced advance licences on mis-representation of facts and if the case was not detected against the applicants/appellants, the Government would have lost duty to the tune of Rs. 15.79 lakh. He also submits that the investigations have revealed that there was no factory running at the time of importation of the goods. The applicants/appellants were not having any machinery to manufacture the silk made-ups for exportation. As such, he justifies the imposition of penalties.
3. After considering the submissions made from both sides, I find that admittedly, the advance licences were issued to the applicants/appellants for importation of Raw Silk free of duty against export obligation. At the time of procurement of the advance licence, the applicants/appellants were required to show the S.S.I. Certificates showing the existence of the manufacturing factory. It is on record that the applicants/appellants were having provisional Small-Scale Industries Certificate issued by the Directorate of Industries on the basis of which the advance licences were issued to them. I have also seen the statement of the applicants/appellants relied upon by the adjudicating authority, which clarifies that the factory was in existence in the year, 1996-97, but had to be put under lock and key because of labour trouble. The entire case of the Revenue is based upon the fact that the Raw Silk imported by the applicants/appellants was not to be used by the applicants/appellants in the manufacture of the silk made-ups which were to be ultimately exported. This view, prima-facie, according to me, is based upon a hypothetical view, inasmuch as the same is connected with the future activities of the applicants/appellants. As such, I find that the applicants/appellants have a prima-facie case in their favour so as to allow the Stay Petitions unconditionally. I order accordingly and fix the main appeals on 2.8.2001.
Dictated in the open Court.
