The main legal point established in the judgment is that the Tribunal's order was considered to have arrived at a prima facie conclusion, and that an efficacious remedy of appeal is guaranteed under the Act.

T.R. Ramachandran Nair, J.

The petitioner's application for waiver of pre-deposit of duty of Rs. 1,20,79,765/- with interest, with equal amount of penalty, has been disposed of by the Customs, Excise and Service Tax Appellate Tribunal by Ext.P13 order, directing the petitioner to pre-deposit an amount of Rs. 60 lakhs within six weeks. It is also directed that subject to deposit of the above amount, there shall be waiver of pre-deposit of the balance of the dues as per the impugned order and stay of recovery thereof till the disposal of the appeal. Waiver of pre-deposit of penalties imposed on the two appellants has been granted and stay of recovery has also been ordered. It is mainly contended that the order has been passed by the Appellate Tribunal without considering the undue hardship caused to the petitioner and without considering the pleas on the merits. It is submitted that none of the questions have been considered in the real perspective.

2. The petitioner herein is a company engaged in the imported furniture business which was mostly being done from Malaysia and China. After importing, the same used to be sold in India. The present proceedings started after the Department, on the basis of some intelligence report suggesting under-invoicing, carried out a search in the premises of the petitioner including their showrooms and residence of their directors on 3-10-2006. They collected some documents including proforma invoices, files and registers and issued a show cause notice as per Ext.P1. After completing the investigation and other steps in the matter, an order was passed by the authority as per Ext.P7 finding that the petitioner is liable for under-invoicing in regard to 129 consignments which were already cleared. The same was set aside by the Tribunal by Ext.P8 order on the finding that there is non-application of mind and on other findings. Fresh adjudication order has been passed as per Ext.P9 and the finding therein is confined to 86 out of 129 consignments which was appealed by the petitioner under Section 129 of the Customs Act Ext.P11 is the application submitted as per Section 129E of the Act for waiver of pre-deposit. In support of the plea that there will be undue hardship, the petitioner relies upon Ext.P12(a) and P12(b) balance sheets.

3. The petitioner's contentions mainly are that the proceedings have been initiated at the instance of one Superintendent of Customs, Mr. Joyce Mathew. It is also stated that the show cause notice was issued on the basis of the deposition given by one Shri Mohammed Farook who was alleged to be a money changer based in Malaysia who was also one of the friends of the Director. A statement was obtained by him, but the same was retracted later.

4. A total number of 129 consignments were taken up for investigation, out of which, 89 are from Malaysia. The Department relied upon the investigation conducted abroad whereby they have received some documents from the Malaysian Royal Customs about the declaration filed by the exporters which shows different declared values in that country. It is pointed out that the untranslated document in Malay, along with the unsigned data, which are photo copies of the copies filed by the exporters with the Malaysian Royal Customs was annexed to the show cause notice. The same is produced as Ext.P4. With regard to the imports from China also, the Department relied upon a similar report received from Chinese Customs. The petitioner mainly points out in the writ petition that in the light of the decision of the Apex Court in Commissioner of Customs, Calcutta v. South India Television (P) Ltd. [2007 (214) E.L.T. 3], the entire proceedings will have to be set aside. The Department has not relied upon any contemporaneous records to prove the price and the burden of proof in that regard has not been discharged. The petitioner has produced contemporaneous records as evident from Ext.P6 list of documents which were never considered. It is pointed