Bombay High Court
Mahadik Petroleum P. Ltd. vs Union Of India (Uoi) And Ors. on 23 September, 2003
Equivalent citations: 2004 (112) ECR 237 Bombay
Bench: V Daga, J Devadhra
ORDER
1. Rule returnable forthwith. By consent of parties petition is taken up for final hearing.
2. This petition is directed against the order dated 26.5.2003 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Region Bench at Mumbai, (the Tribunal for short) directing pre-deposit in the sum of Rs. 7 lacs.
3. Learned Counsel for the petitioners submitted that the Deputy Commissioner of Customs directed-refund in the sum of Rs. 13,87,487/- to the petitioners. While granting refund, a categorical finding has been given by the Deputy Commissioner of Customs that the subject machine has been actually installed and put into use by the importer at their plant at Kolhapur. The importer had also submitted Chartered Accountant's Certificate to the Effect that the incidence of duty has not been passed on to the consumers, in spite of the fact that the petitioners are incurring losses. This evidence was accepted by the Deputy Commissioner of Customs while allowing refund.
4. Not being satisfied with the above order of the Deputy Commissioner of Customs dated 15.1.2002, the Revenue preferred an appeal before the Commissioner of Customs (Appeals), who was pleased to allow the appeal filed by the Revenue, holding that the evidence tendered by the petitioner by way of certificate issued by his Chartered Accountant could not have been relied upon. It cannot be said to be conclusive evidence to reach to the conclusion that incidence of duty has not been passed on to the customers.
5. The above order of the Commissioner of Customs (Appeals) dated 31.17.2002 is the subject matter of challenge before the Tribunal at the instance of the petitioners/assessee. The Tribunal while considering the prayer for dispensing with the necessity of pre-deposit, directed the petitioners to deposit Rs. 7 lacs by way of pre-deposit. This order is a subject matter of challenge in this petition.
6. Having heard the parties and having seen the findings recorded by the authority in original and considering the fact that machine is actually installed at the plant by the petitioners, it is clear that the petitioner has made out a prima facie case to dislodge the finding with respect to unjust enrichment suffered by them in appeal filed by the Revenue. In this view of the matter, petitioner is entitled to full waiver of pre-deposit. We, therefore, quash and set aside the impugned order and direct the Tribunal to here the appeal on merits as expeditiously as possible at any rate, within a period of 6 months from the date of receipt of writ of this order, without insisting upon Pre-deposit. The observations made by us are prima facie. The Tribunal shall decide appeal filed by the petitioner's uninfluenced by observations made herein.
7. Petition accordingly stands disposed of with no order as to costs.
8. Parties to act on copy of this order duly authenticated by the Court Associate.
