RSI LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition challenges order dated 1st August, 2007 made by the Customs Excise and Service Tax Appellate Tribunal (the Tribunal) and seeks a direction against the Tribunal to hear the petitioner on merits after dispensing with the amount that the petitioner has been directed to deposit.

(2.) The facts of the case briefly are that against order dated 29th April, 2005 made by the Commissioner of Customs (Preventive), Jamnagar, the petitioner preferred appeal before the Tribunal. Before the Tribunal reliance was placed upon an order made by the Tribunal in the case of the sister unit in whose case the D.G.F.T. authorities had since granted an extension of the period for fulfillment of export obligation on the basis of which the appeal had been allowed and the matter was remanded to the original adjudicating authority with a direction to rehear the petitioner and thereafter to determine the duty and consequent penal liabilities, if any, only after the extended period was over. Though in the present case extension had not been granted, the learned Counsel for the petitioner had placed on record a letter from the office of the DGFT wherein it was stated that the committee had decided to call for details of import and export for consideration of the request for extension of export obligation period. The Tribunal, vide order dated 7th February, 2006, allowed the appeal and remanded the matter to the original adjudicating authority in the light of the earlier order.

(3.) Pursuant to the order passed by the Tribunal, the Commissioner vide order dated 31st January, 2007, confirmed the earlier order passed by him on 29th April, 2005. The Commissioner observed that in the case of the petitioner there was no proof of consideration of its application for extension of export obligation period, let apart the approval of grant of extension of export obligation period, fulfillment of stipulated conditions and expiry of period of extended period. Therefore, since the extension itself had not even been granted the question of waiting for the expiry thereof does not arise. The Commissioner also clarified that the duty had not been demanded for non-fulfillment of the export obligations but had been demanded for the diversion of the goods imported duty-free under the Exemption Notification No. 204/1992-Cus., dated 19-5-1992 into the domestic market. The petitioners challenged the said order by way of appeal before the Tribunal, along with a stay application. The Tribunal after hearing the learned advocates for the parties on the question of stay and waiver of pre-deposit held that the petitioner/appellant had not made out a prima-facie case for total waiver of the duty as confirmed by the Commissioner in his order dated 31st January, 2007 and directed the petitioner to deposit Rs. 2 crore within a period of twelve weeks and to report compliance on 29th October, 2007. The Tribunal further observed that subject to payment of pre-deposit as above, pre-deposit of balance duty and penalty imposed upon the petitioner-Company would stand waived. It was further held that non-payment of pre-deposit would result in dismissal of the appeal without further notice to the petitioner-Company.