Soumitra Pal, J. - (1.) Supplementary affidavit filed today be kept with the record.
(2.) In the writ petition the petitioner, stated to be the proprietor of M/s. Radhika Exports, has challenged the orders dated 8th January, 2008 and 21st February, 2008 passed in the Stay Petition No. 419 of 2007 in connection with Customs Appeal No. 168 of 2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, the respondent No. 2 on the ground that the direction upon the petitioner to pre-deposit 25% of the amount and full amount of penalty was made without considering the fact that exports had taken place in the year 2002 since bills of exports, packing lists, affidavit affirmed by the foreign buyers, documents relating to foreign exchange remittances and bank realisation certificates were furnished. Submission is ignoring these factual aspects the Tribunal had passed the order dated 8th January, 2008 relying solely on the order passed by the adjudicating Commissioner as evident from paragraph 2 of the said order. Though application was filed for modification or recalling the order dated 8th January, 2008, same was disposed of on 21st February, 2008 considering the balance of convenience and not on the fact whether an arguable or a prima facie case has been made out. Reliance has been placed on the judgment of the Apex Court in Mehsana Dist, Co-op. Milk Pvt. Ltd. v. Union of India, 2003 (154) ELT 347 (SC) in support of his submission.
(3.) Learned Advocate on behalf of the respondents submits that the orders dated 8th January, 2008 and 21st February, 2008 passed by the learned Tribunal is just and proper as it is evident from the order in original that documents were fabricated, there was no physical movement and as such no export at all had taken place. As a result investigations have been initiated in the year 2005 and summons was issued in 2006.;