Picasso Overseas vs Cestat, Chennai

Chitra Venkataraman, J.—The petitioner seeks issuance of a writ of certiorarified mandamus to quash the order dated 7-9-2009 [2009

(243) E.L.T. 359 (Tribunal)] and to direct the first respondent to hear the appeal filed by the petitioner firm without insisting for any pre-deposit of

duties.

The petitioner herein was assessed provisionally on the basis of the investigation done by the designated authority with reference to levy of

antidumpting duty. The petitioner executed a bond for provisional assessment as per the directions of the third respondent and cleared the goods.

Subsequently on the basis of the notification dated 10-12-2002, in Notification No. 138/2002, a final demand was raised for a sum of Rs.

2,73,31,320/- for the three imports allowed clearance provisionally. Aggrieved by this, the petitioner filed an appeal before the second respondent.

The second respondent without observing the principles of natural justice dismissed the appeal filed by the petitioner. The petitioner challenged the

said order before the Tribunal, the first respondent herein. The Tribunal by order dated 13-3-2006 directed the second respondent to pass fresh

order. In the course of appeal before the second respondent, the petitioner was directed to pay 75% of the demanded duty. The petitioner filed

modification petition. However, the second respondent dismissed the appeal filed by the petitioner by order dated 20-6-2006 stating that the

petitioner firm failed to comply with the interim directions for pre-deposit of the duty. Once again the petitioner approached the Tribunal. The

Tribunal by order dated 4-1-2007 2007 (117) ECC 45 , directed the second respondent to rehear the appeal and pass orders. As against the

order passed by the second respondent dated 29-1-2009, the petitioner approached the first respondent by way of appeal and also filed an

application for stay of recovery of the amount demanded. The first respondent passed an order directing the petitioner to comply with the pre-

deposit of the entire amount of duty for considering the appeal in terms of Section 129E of Customs Act, 1962. The petitioner has come before

this Court contending that the issue is covered by the decision rendered by the Larger Bench of the Customs Tribunal. The direction given by the

Tribunal that the petitioner should deposit the entire duty amount for considering the appeal is not sustainable and against the principles of equity.

The petitioner further submits that the first respondent should have granted waiver of pre-deposit of the duty by following the decision of the

Coordinate Bench in Mumbai in the case of 2007 (122) ECC 193 , or in the alternative if the first respondent does not agree with the view of the

Co-ordinate Bench case, refer the matter to the Larger Bench for a decision. In the circumstances, the present writ petition has been filed.

Learned counsel for the petitioner pointed out that when the order had already been made by the Co-ordinate Bench on an identical

circumstance, the first respondent should give exemption of duty and take up the appeal on merit. Hence, the Tribunal had failed to adhere to the

prima facie case made out by the petitioner and the petitioner firm is entitled to get waiver of pre-deposit of duty. The petitioner brought to the

attention of this Court to the order passed in Commissioner of Customs (Exports) Vs. Choice International, that in the appeal preferred by the

Revenue as against the order of exemption, this Court objected the plea of the Revenue and directed the Commissioner (Appeals) to take up the

appeal on merit. In the circumstances, the counsel for the petitioner pleads that the Tribunal be directed to take up the appeal on merits without

insisting of duty.

In this connection, he placed reliance on the decision of the Allahabad High Court reported in ITC Limited Vs. CC (Appeals) and CE and

Others, wherein on the petitioner showing a prima facie case, the High Court directed the Appellate Authority to pass order in application for

stay/waiver afresh in accordance with law, if possible the Appellate Authority is directed to decide the appeal itself within a time. The High Court

granted stay in respect of recovery till a decision is taken in the application for stay/waiver.

I have perused the order of the Tribunal. A reading of the same shows that considering the various issues raised by the petitioner and to the

order of the Bombay Bench, the Tribunal pointed out that the balance of convenience is in favour of the Revenue and the financial hardship

pleaded by the petitioner on the basis of the balance sheet of 2001-02 is not sufficient for considering the stay application. The Tribunal also

referred to the decision of the Apex Court reported in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd.

and Others, and Benara Valves Ltd. and Others Vs. Commissioner of Central Excise and Another, as well as Vijay Prakash D. Mehta and

Another Vs. Collector of Customs (Preventive), Bombay, to direct the petitioner to deposit the entire antidumping duty within a period of eight

weeks from the date of hearing i.e. on 7-9-2009 and subject to compliance thereof, the appeal of the petitioner should be taken up.

The decision relied on by the learned counsel cannot be applied straight away to this case on hand. The question as to the dispensing with the

payment of duty is a discretionary one to be exercised by the Tribunal on a consideration of prima facie case shown, apart from the balance of

convenience established and the prejudice that the petitioner may suffer by a direction for payment.

A reading of the Tribunal''s order leaves no manner of doubt as to its decision as regards the prima facie case made out by the petitioner. The

mere fact that the Tribunal has not accepted the plea of the petitioner as regards binding character of the Co-ordinate Bench does not mean that

the Tribunal had not considered the said contention. While there can be no two opinion as to the binding character of the decision of a Co-ordinate

Bench on a another Bench, on any particular issue, yet given the freedom to differ from a decision of Co-ordinate Bench and to refer the same

decision to a Larger Bench, I do not find any justification in the submission of the learned counsel for the petitioner that the impugned order has to

be set aside as the issue is covered by the decision of the Coordinate Bench. Hence, no fault can be found on discretion exercised by the Tribunal.

Learned counsel for the petitioner, however submitted that considering the financial difficulties of the petitioner, the order to dispense with the

payment be granted. While the financial difficulties projected by the petitioner may be one of the grounds for considering the case of the petitioner,

yet, for grant of relief to the petitioner, considering the various facts of this case, interest of justice demands the petitioner to direct the deposit of

Rs. 75 lakhs within a period of eight weeks. If and when the payment is made, the Tribunal be directed to take up the appeal and dispose of the

same within a period of four weeks thereon without insisting of further payment.

With the above observation the, writ petition is disposed of. No costs. Consequently, connected MPs are closed.