Kaka Carpets vs CESTAT

In the present appeal, the appellant has challenged the order dated 8-4-2013 [2015 (320) E.L.T. 806 (Tri.-Del.)] passed on the application under Section 129A(4) of the Customs Act by which the Tribunal has waived the deposit of penalty amount and has directed to deposit a sum of Rs. 12 crore in 8 weeks. Over and above, bank guarantee of Rs. 70 lac was directed to be appropriated by adjudication. This Court while entertaining the appeal has stayed the recovery of amount on deposit of Rs. 3 crore in cash and furnishing security of other than cash or bank guarantee to the extent of Rs. 9 crore to the satisfaction of respondent No. 2 Kaka Carpets Vs. CESTAT, . The appellant has filed supplementary affidavit. In para 11 of the affidavit, it is stated that a sum of Rs. 3 crore has been deposited and the Challan has been furnished in the office of Assistant Commissioner, Customs and Central Excise (ICD), In-charge, Bhadohi and security bond for Rs. 9 crores were submitted before the Assistant Commissioner. Initially security bond of Rs. 9 crores were furnished before the Assistant Commissioner, Customs and Central Excise (ICD), In-charge Bhadohi, but on the insistence of the Assistant Commissioner, the documents of the immovable property worth more than Rs. 9 crores have been furnished. The security has been accepted by the Assistant Commissioner, Customs and Central Excise (ICD), In-charge, Bhadohi.

Learned Counsel for the appellant submitted that the basis for demand for the periods of 2004-05 to 2008-09 is wholly unjustified. The objection has been raised in respect of three consignments dated 7-6-2008. The allegation is that to avail the higher duty drawback, the goods of lower quality have been attempted to be exported in place of the carpets. There is no material for such allegation for the past years. He submitted that the matter requires consideration by the Tribunal on merit. He further submitted that the appellant is running in financial hardship, therefore, the deposit of the amount, as directed by this Court, may be accepted as the sufficient and the deposit of the balance amount be waived and the Tribunal be directed to decide the appeal on merit. He submitted that the date of hearing fixed before the Tribunal is 5-5-2014.

Sri Amit Mahajan, learned Counsel for the respondent, vehemently argued that on the facts and circumstances the order of the Tribunal is wholly justified.

We have considered rival submissions and perused the record.

We are of the view that it is a matter of adjudication that whether the allegation made by the Department in respect of three consignments is correct or not and whether on the basis of such allegation in respect of three transactions the duty can be demanded for the past periods.

Having regard to the facts and circumstances, we are of the view that the deposit of Rs. 3 crore and furnishing of security for Rs. 9 crore in view of the interim order be treated as sufficient and the appeal be heard on merit. In the result, the appeal is allowed in part. The appellant is directed to file an affidavit before the Tribunal for the deposit of amount of Rs. 3 crore and for furnishing security of Rs. 9 crore within a period of one week. On furnishing of such details, the Tribunal is directed to decide the appeal on merit, if possible on the next date fixed.