- (1.) Petitioners have filed present writ petition assailing order dated 16.11.2009 passed by the Customs, Excise & Service Tax Appellate Tribunal-respondent No. 2, whereby learned Tribunal was pleased to dismiss the application of the petitioners seeking exemption to deposit duty imposed on the petitioners to maintain the appeal. Brief facts of the present case, inter alia, are that petitioner No. 1 (hereinafter called 'the petitioner') had imported 08 consignments of ball bearing involving customs duty amounting to Rs. 3.84 crore; on 28.1.1999, Customs Department i.e. respondent No. 1 detained one consignment of the petitioner by declaring value of Rs. 34.06 lac; in follow-up action. Customs Department on 29.1.1999 searched the factory premises of the petitioner and goods worth Rs. 2.02 crore were seized saying that petitioner has imported finished goods whereas in the bill of entry, petitioner had declared incomplete goods; Customs Department has also seized goods valued Rs. 3.82 lac from the godown of the petitioner; show-cause notice was issued to the petitioner on 19.1.2000 and thereafter on 29.8.2005 respondent No. l has passed order confiscating the goods of the petitioner under Section 111(d) and 111(o) of the Customs Act and had imposed penalty. Feeling aggrieved from the order dated 29.8.2005, confiscating the goods and imposing penalty, petitioner had approached the Tribunal by way of appeal wherein an application under Section 129E of the Customs Act was preferred, which was initially dismissed by learned Tribunal on 10.2.2006 with a direction to deposit Rs. 3.00 crore; petitioners No. 2 and 3, namely, Kanchan Kumar Kaura and Mr. Mohan Lal Thapar, were directed to deposit an amount of Rs. 5,00,000/- each. Petitioner moved an application for modification of order dated 10.2.2006 stating that goods worth Rs. 5.07 crore are lying in the custody of the respondent, therefore, interest of the revenue is saved. However, it did not find favour with the learned Tribunal and modification application was dismissed by the Tribunal vide order dated 21.7.2006 and appeal was also dismissed on the ground of noncompliance of stay order. Petitioners preferred CWP No. 17304 of 2006 before this Court, however, same was dismissed by this Court vide order dated 2.11.2006; thereafter petitioners preferred SLP before Hon'ble the Supreme Court, however, Hon'ble Apex Court vide order dated 7.2.2008 was pleased to remand the matter to this Court by placing reliance on the judgment rendered in the case of Bhavya Apparels Private Limited v. Union of India, 2007 10 SCC 129. Thereafter, this Court vide order dated 3.10.2008 was pleased to remand the matter to learned Tribunal to pass fresh order on the stay application. Learned Tribunal again was pleased to dismiss the stay application vide impugned order.
(2.) We have heard Mr. Jagmohan Bansal, learned counsel for the petitioners and Mr. HPS Ghuman, learned counsel for respondent No. l.
(3.) Mr. Bansal has vehemently argued that if goods seized are in the custody of the department then the pre-deposit of the penalty and duty imposed to maintain the appeal is not required in view of Section 129E of the Customs Act.;