Judgment:
1. Along with their appeal against the order No. 686/91, dated 20-8-1991 passed by the Additional Collector of Customs, Air Cargo Complex, New Delhi the appellants have also filed an application for dispensing with predeposit of the penalty of Rs. 44,500/- imposed under Section 112(a) of the Customs Act, 1992.
2. On behalf of the applicants the learned advocate Shri Raj Kumar Sarana appeared before us. He stated that the applicants had placed an order on Office Appliances Company, P.O. Box 949, Hongkong for certain components of Plain Paper Copiers which were despatched by the suppliers by air on 21st September, 1984. He added that in respect of imported spares a Bill of Entry No. 46473, dated 13-11-1984 was filed.
The goods were imported against the import licence No. 2030410, dated 16-7-1982. The learned advocate pointed out that pending issue of a telegraphic release advice by Bombay Customs House against their licence an application was filed before the Assistant Collector seeking clearance of the imported components against I.T.C. bond. On the importers' request being granted an I.T.C. bond for Rs. 44,280/- was executed. He added that even though the necessary release advice against the import licence No. 2030410, dated 16-7-1982 was obtained to cover the goods which were released by the Customs authorities against I.T.C. bond the Additional Collector passed the impugned order imposing a penalty of Rs. 44,500/- on the importers under Section 112(a) of the Customs Act, 1962. The learned advocate pointed out that the applicants had neither received the show cause notice, dated 12-2-1990 which has been referred to in the impugned order, nor did they receive the intimation regarding the personal hearing having been fixed on 26-10-1990. He contended that under these circumstances the impugned order was violative of Principle of Natural Justice. On the ground that the appellants hold a release advice in respect of the goods in question against their valid licence registered at Bombay the learned advocate pleaded that the prior deposit of the penalty of Rs. 44,500/- may be dispensed with and the impugned order may also be set aside, to enable them to produce before the customs authorities the release advice in respect of goods in question for regularising the import.
3. On behalf of the Revenue the learned SDR Shri G. Bhushan stated that in the order appealed against the adjudicating authority had indicated that the show cause notice was issued to the appellants and they were also asked to appear for personal hearing on 26-10-1990. He, however, added that in view of the appellants' claim the show cause notice and the intimation regarding the date of personal hearing were not received by them and also in view of their claim that they had obtained a valid release advice against their valid licence registered at Bombay he had no objection in regard to the case being remanded for de novo consideration.
4. We have examined the record of the case and considered the submissions made on behalf of both sides. Having regard to the facts and circumstances of the case we are of the view that requiring the appellants to deposit the penalty of Rs. 44,500/- imposed under the impugned order would amount to undue hardship. We, therefore, dispense with predeposit of the said amount of penalty and allow the application for stay filed by the applicants.
5. Having disposed of the said application we proceed to deal with the appeal. The appellants claim that they had neither received the show cause notice dated 12-2-1990 which has been referred to in the impugned order, nor the intimation regarding the personal hearing fixed on 26=10-1990. There is no evidence on record to show that the show cause notice and the intimation regarding the date of personal hearing was served on the appellants. Under these circumstances we were of the view that sufficient opportunity was not afforded by the adjudicating authority to the appellants to present their case with the help of supporting documents. The impugned order is, therefore, violative of Principle of Natural Justice.
6. In view of the foregoing we set aside the order-in-appeal and allow the appeal by way of remand to the Additional Collector of Customs who shall readjudicate the case in accordance with law after giving a suitable opportunity to the appellants for presenting their case in person.