AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2376 OF 2008 Shimnit Kiwalite Industries Private Limited ..Petitioner V/s. Union of India & Others ..Respondents Mr.V.R. Dhond i/by Crawford Bayley & Co. for the petitioner. Mr.R.V. Desai with MrR. Kumar for the respondents. CORAM : P.B. MAJMUDAR & J.P. DEVADHAR, JJ. DATED : 20TH NOVEMBER, 2008 P.C. : 1. This petition is directed against the order passed by the Tribunal, by which the Tribunal after giving cogent reasons has allowed the petitioner to deposit Rs.2 crores instead of Rs.4,90,93,914/- and also waived the penalty of Rs.4,90,93,914/- as ordered by the Commissioner of Customs (Import). The Tribunal has given cogent reasons and in fact liberal view has been taken in favour of the petitioner. Cogent reasons have been given by the Commissioner of Customs (Import) in the order in original. Observations made in Para 23(vi) (a) to (i) of the Order in original, reads as under : a) The imports of RETRO-REFLECTIVE SHEETINGS were made by the importer from the year 2003 till August of 2005. The declared prices have remained constant for all the imports during this period for example BE no.581461 dated 7-3-03 and BE 198035 dated 8-2-2005 the price was 3600 Japanese Yen per roll of size 48" x 50 yards. There was not even a minor fluctuation or variation in the import value over a period of 3 years. b) There is documentary evidence on record as discussed at para 23(ii) above to show that there was a special relationship between the buyer and seller. c) The declared CIF value is ten times less than the actual freight paid / payable. d) The Article 7 of the exclusive distributorship agreement was for pricing on FOB basis unless specially agreed in writing whereas the invoices were on CIF basis, and no document for change in invoicing put forward by the importer. e) Both Nikkalite brand of M/s.Nippon Carbide Industries and Kiwalite brand of Kiwa Chemical Industry Co manufacturer are intentionally well known brands of Retro Reflective sheetings. f) The remittances were made through banking channesls only after the live consignment was detained by the Central intelligence Unit of Air Cargo Complex. g) The goods imported @ Rs.1457/- per roll were sold @ more than Rs.64,000/- per roll i.e. selling price was around 45 times and more. h) Crossed cheques were issued to a non existent firm going by the name of M/s.Bansal Automobile Products and discounted by third party for cash without any apparent rendering of services or for payment of goods. i) The importer at first import and/or subsequent imports did not declare the relation ship which was covered by Subrule 2(2) of the Customs Valuation (Determination of Price of Imported goods) Rules 1988 read with Explanation II there of. 2. In our view, the Tribunal has taken lenient view in favour of the petitioner by asking him to deposit Rs.2 crores. The learned counsel for the petitioner also failed to point out any financial hardship in order to substantiate his say that the amount of pre-deposit should be reduced. This is not a case in which this Court would like to interfere with the impugned order in its extra-ordinary jurisdiction under Article 226 of the Constitution of India. 3. We do not find any infirmity in the order of the Tribunal. Hence, rejected. (P.B. Majmudar, J.) (J.P. Devadhar, J.)