NATIONAL OXYGEN LIMITED Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE correctness of the order dated 26.2.2002 made in Writ Petition No.1582 of 1998 non-suiting the appellant to quash the order of the Customs, Excise and Gold (Control) Appellate Tribunal, (hereinafter referred to as "CEGAT") dated 20.1.1998 imposing a pre-condition of payment of fifty percent of the differential duty in a sum of Rs.37,50,000/- for setting aside the order in original dated 24.7.1997 of the first respondent is put in issue in this appeal.

(2.) THE facts of the case are as follows: THE appellant imported two second hand air separation plant of US origin and one Deoxo Argon Purifier of the year 1965 and 1968 respectively vide Bill of Entry Nos.20821 dated 24.5.1994, 22225 dated 1.7.1994 and 20282 dated 23.6.1994 respectively. THE appellant sought the assessment of the consignment under Notification Nos.90/94 and 91/94. THE bills of entry were assessed provisionally under Section 18 of the Customs Act, 1962 and were cleared out of customs. It appears that on the basis of information supplied by the Directorate of Revenue Intelligence, a show cause notice was issued to the appellant on 31.10.1996 and the Commissioner of Customs, Chennai by his order in original imposed customs duty of Rs.73,23,578/- by enhancing the value of consignment to Rs.3,47,37,377/-. He ordered for the confiscation of the goods under Section 111(m) of the Customs Act, 1962 but allowed to be redeemed on payment of fine of Rs.10 lakhs and also imposed a penalty of Rs.5 lakhs on the appellant under Section 112 of the Customs Act. As against the said order, the appellant filed appeal before the second respondent - CEGAT. THE second respondent by order dated 20.1.1998 has concluded as follows: ".... In this connection, we are of the view that this is a fit case which requires to be remanded for considering the plea of the appellants with respect to the fact that this original certificate of the Chartered Engineer pertains to a machine which was made in the year 1965 or was made in the year 1994...."

(3.) ON the other hand, the learned counsel appearing for the Department contended that the writ petition itself is not maintainable as during the relevant period, under Section 130 of the Customs Act, if the importer has not accepted the order of the CEGAT, he can request the CEGAT to make a reference to the High Court by raising a question of law. Without following statutory remedy, filing a writ petition under Article 226 of the Constitution of India is nothing but short-circuiting the statutory remedy, which has been deprecated by this Court as well as the Supreme Court in several cases. He relied on a decision of the Division Bench of this Court in the case of M/S. Nivaram Pharma Private Limited Represented By Its Director Sardarmal M. Chordia, Madras Vs. The Customs, Excise And Gold (Control) Appellate Tribunal, South Regional Bench, Madras And Others, (2005) 2 M.L.J. 246. ON merits, he contended that Section 129B of the Customs Act empowers the Tribunal to impose, what ever direction it thinks fit in the interest of justice and hence the imposition of pre-condition directing the appellant to deposit fifty percent of the differential value is strictly in accordance with the power vested on the Tribunal.