Ram Gopal Kudal vs Commissioner Of Central Excise

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.C/41274/2014

[Arising out of Order-in-Appeal No.C.Cus.No.868/2013 dt. 27.6.2013 passed by the Commissioner of Customs (Appeals), Chennai]

Ram Gopal Kudal Appellant

Versus

Commissioner of Central Excise, Chennai Respondent

Appearance:

Shri H.S. Hredai, Advocate (Proxy) For the Appellant

Ms. Indira Sisupal, AC (AR) For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 24.8.2015

FINAL ORDER No.41018/2015

Per R. Periasami

Vide this Tribunal's MISC Order No.40718/2015 dt. 6.5.2015, the appellant was directed to predeposit Rs.25 lakhs within a period of 4 weeks and compliance was posted on 15.6.2015. Subsequently, the matter was fixed on 3.8.2015 and the learned Advocate Shri H.S. Hredai appeared and informed the Bench that they had filed a C.M.A. before the Hon'ble High Court, Madras against the Tribunal order and the Hon'ble High Court vide order dt. 26.6.2015 in C.M.A.No.1235 of 2015 and M.P.No.1 of 2015 dismissed their appeal and requested the Bench for time to comply the High Court order as the copy of order was received on 27.7.2015 accordingly the appellant request was considered and given time and posted for compliance on 24.8.2015.

2. Today, when the was taken up for compliance, the learned counsel submits that appellant have not complied with the Hon'ble High Court's order and informed orally that they have filed a S.L.P. against the High Court's order.

3. The Ld. A.R submits that since the Hon'ble High Court dismissed their CMA and upheld the Tribunal order and the appellants not compiled the High Court order she submits that the Tribunal order got merged with the Hon'ble High Court order.

4. After hearing from both sides, we find that this Bench vide Misc Order No.40718/2015 dt. 6.5.2015 ordered predeposit of Rs.25 lakhs against total penalty of Rs.52,56,555/- imposed on the appellant by the adjudicating authority. The Hon'ble High Court of Madras vide order dt. 26.6.2015 in C.M.A. No.1235/2015 and M.P. No.1 of 2015 dismissed the said C.M.A and upheld the Tribunal's order. The relevant paragraph of the High Court's order is reproduced as under :-

"8. In the show cause notice issued, in paragraph No.5, it was stated as follows:

i) the goods i.e. two consignments of Polyester Fabrics admeasuring 80465.24 Mtrs (93265.4 SQM) valued at Rs.15,15,314/- (PMV Rs.49.66 Lakhs) imported in the name of M/s.Narayan Impex under B/E No.883275 & 883276 both dated 29.02.2005 and placed under seizure at Chennai Sea Port should not be confiscated under 111 (o) of the customs Act, 1962

ii) The appropriate Customs duty leviable on the said seized goods should not be demanded and recovered from them along with interest in terms of Section 28 (1) and 28AB of Customs Act, 1962 read with relevant Notification No.43/2002-Cus. dated 19.04.2002 Notification No/91/2004-Cus. dated 10.9.2004 as applicable, upon redemption, if any allowed by the adjudicating authority.

v) penalty should not be imposed on them under Section 114A and 112 of Customs Act, 1962".

9. We find that the plea of the appellant that no penalty should be imposed under Section 114A is not correct in view of para (i), (ii) & (v) of para 5 of the show cause notice which we set out above the show cause notice has been issued in terms of Section 28 along with a demand of penalty under Section 114A as against the importer and the present appellant as well as involved in the fraudulent import. The evidence available indicates the knowledge and involvement of the appellant in the import of the goods, which established the role of the appellant. Therefore, we find no justification in modifying the order passed by the Tribunal. The appellant has not filed any supporting material to substantiate the plea of financial hardship."

In view of the Hon'ble High Court's above order, this Tribunal order merged with High Court order and the appellant failed to comply the High Court order. After the Hon'ble High Court's order, sufficient time was given to the appellant for compliance and the appellant failed to comply with the orders of High Court. Advocate's oral mentioning that they have filed a S.L.P against the Hon'ble High Court order is not acceptable as there was no stay against the High court order. Since the appellants have not complied the predeposit ordered which was upheld by the Hon'ble High Court, the appeal is dismissed for non-compliance of High Court's order.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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