Judgment:
1. Applications are for waiver of deposit of Rs. 9,76,667/- by Daga Fibres & Synthetics Ltd., a penalty on it of Rs. 1 lakh and penalties on Gulab S. Daga, its director, Sushil Bafna, its manager, of Rs. 1 lakh and Rs. 25,000/- respectively.
2. The applicant is absent and unrepresented. Common Counsel for the applicant seeks adjournment on the ground that he has gone away to Ti-rupati. The matter was last adjourned on 26-9-2001 at his request on the ground that he had gone to the U.S.A. We do not think that the Counsel's travels for personal reasons justify adjournment, especially more than once. We therefore decline to adjourn and, having read the stay application and heard the departmental representative, proceed to dispose of the stay application.
3. Daga Fibres & Synthetics Ltd. imported a consignment of synthetic waste and claimed its clearance free of duty in terms of Notification 30/97. This notification exempts goods from duty subject to the condition that they are covered by duty exemption in terms of certificate and that the imported materials shall not be disposed of except for utilisation in discharge of export obligation, before the export obligation has been discharged. The notification also provides that the importer shall execute a bond with such surety or security for such sum as may be specified by the Assistant/ Deputy Commissioner of Customs binding himself to pay on demand amount equal to the duty leviable on the imported materials but for the exemption contained in the notification. The importer was accordingly asked to execute a bank guarantee for Rs. 4.23 lakhs issued by the Bank of India. The bank guarantee dated 8-12-1997 was stated to be valid till 7-12-2000. The goods were cleared on the basis of this bank guarantee.
4. Subsequently the department came to know that the bank guarantee was in fact actually valid only for six months i.e. up to 7-6-1998. On being confronted with this, Gulab S. Daga admitted in his statement alteration of the bank guarantee so as to show it to be valid till 7-12-2000. Sushil Bafna accepted that this had done it is on this basis that notice has been issued and the order of the Commissioner demanding duty and imposing penalty.
5. The contention in the stay application is that if the exports that have actually been made taken into account, duty demand comes down around Rs. 3.03 lakhs. Copies of shipping bills have been enclosed. The shipping bills are produced before us for the first time. The finding of the Commissioner that none of the parties filed reply to show cause notice and did not attend the hearing on any one of the five occasions fixed for hearing is not controverted in the application or appeal.
These documents are therefore completely new and cannot be considered.
The appeal also accepts that there has been a change in the bank guarantee, although it is contended that the mere fact that it will benefit the company cannot justify the conclusion that it was done at the behest of Gulab Daga and Sushil Bafna. We note the statement of Sushil Bafna in which he admitted having got the bank guarantee forged at the instance of Gulab Daga. In the facts of the case we are vary of relying upon photocopies of documents.
6. In any event one of the conditions subject to which exemption is available that the importer should produce a bond in such surety and security which the Customs authority may determine that the bank guarantee has prima facie clearly been violated. The bank guarantee which has been altered is prima facie not a valid document. The claim of financial hardship is also not supported by evidence.
7. We therefore direct deposit of the entire duty by the company and deposit by the company and each of the other two applicants of 50% of the penalty imposed on each of them, within a month from the receipt of this order. On such deposit, we waive deposit of the remaining penalty and stay its recovery.