PICASSO OVERSEAS Vs. CESTAT, CHENNAI

JUDGEMENT

(1.) 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.

(2.) 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 [2008 231 ELT 293 (Tri. - Chennai)], 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 Harsh International v. Commissioner of Customs, Mumbai,2007 217 ELT 528, 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.

(3.) 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 CMA. No. 341 of 2008, 2008 228 ELT 190], 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.