Delhi High Court
Ashoka Metal Industries vs Union Of India (Uoi) on 18 August, 2006
Bench: M B Lokur, V Sanghi
ORDER
1. The petitioner is aggrieved by an order dated 5th June, 2006 passed by the Customs, Excise and Service Tax Appellate Tribunal Principal Bench, New Delhi in Customs Appeal No. 350-357/05.
2. The Petitioner sought to import some goods on the basis of licenses which were either forged or bogus. Consequently, adjudication proceedings were initiated against the Petitioner and orders were passed directing the Petitioner to pay some duty as well as penalty.
3. Feeling aggrieved, the Petitioner filed an appeal before the Tribunal and along with the appeal an application for waiver of pre deposit of duty and penalty was filed. This application was taken up for consideration on 1st June, 2005 and the Tribunal noted in paragraph 3 of its order that the only contention of the Petitioner was that the demand was time barred. In paragraph 5 of the order, it is noted that the Petitioner did not dispute the fact that the advance licenses submitted for import of duty were bogus and the only contention urged was that the demand was time barred. On a consideration of the issues raised before the Tribunal, it was of the view that it would be appropriate if the Petitioner was required to deposit entire duty amount within a period of six months and if that were done, then the penalty would stand waived.
4. The Petitioner thereafter, filed an application for modification of the order dated 1st June, 2005. This application was taken up for consideration on 26th July, 2005 and the Tribunal declined to modify its earlier order and four weeks time was granted to the Petitioner to make the deposit.
5. Feeling aggrieved, the Petitioner filed writ petitions in this Court being Nos. W.P. (C) Nos. 13431/05, 13432/05, 13440/05, 13448/05 and 13451/05. These writ petitions were taken up for consideration on 2nd September, 2005 and it was observed by this Court that whether the demand is time-barred or is not a mixed question of law and fact. On this basis, this Court modified the order of the Tribunal and directed the Petitioner to deposit 50% of the duty amount and to furnish a bank guarantee for the balance of 50% duty.
6. Thereafter, the Petitioner filed a Review Petition in this Court being R.P. No. 363/05. This review petition was considered on 24th April, 2006 and the Petitioner contended that on similar facts, the Mumbai Bench of the Tribunal had decided a similar issue in favor of the Appellant therein. On that basis it was submitted that the direction to the Petitioner to deposit 50% of the duty amount by way of a bank guarantee was required to be modified. This Court considered the submission and granted liberty to the Petitioner to approach the Tribunal for modification of the order requiring it to furnish a bank guarantee for 50% of the disputed amount in this case the issue is covered by the decision of the Mumbai Bench of the Tribunal.
7. Thereafter, the Petitioner filed an application before the Tribunal bringing all these facts to its notice and contending that the case of the Petitioner is covered by the decision rendered by the Mumbai Bench of the Tribunal.
8. The Tribunal considered the facts of the decision rendered by the Mumbai Bench and came to the conclusion that the Tribunal had found at the final stage of the hearing of the case that there was no evidence to come to the conclusion that there was any willful mis-statement or suppression of fact therein with intent to evade payment of duty. The Tribunal specifically noted that the decision of the Mumbai Bench was based on a finding of fact which was not proved.
9. Distinguishing the decision rendered by the Mumbai Bench, the Tribunal noted that so far as the present case is concerned there is an admission that the advance licenses were forged or bogus and that they were used to make imports of duty free materials and payments were made to a fictitious firm called UNO Enterprises. The Tribunal noted that the facts in present case were completely different from the case decided by the Mumbai Bench and therefore there was no application of the decision laid down by the Mumbai Bench to the facts of the present case.
10. On this basis, the Tribunal declined to waive the requirement of furnishing a bank guarantee for 50% of the duty amount.
11. We are of the view that these are really issues which need to be decided by the Tribunal at the final stage of the matter rather than at an interim stage.
12. Be that as it may, the Tribunal came to the conclusion that the facts of the present case are different from the facts of the case decided by the Mumbai Bench and in our view this does not call for any interference by us at an interlocutory stage. If the case decided by the Mumbai Bench is finally held to be not distinguishable, the Petitioner will get its relief, but the matter cannot be preempted today.
13. Under the circumstances, we find no merit in this writ petition and it is dismissed accordingly. However, liberty is granted to the Petitioner to furnish a bank guarantee for 50% of the deposit of duty within a period of six weeks from today failing which the appeal filed by the Petitioner will have to be dismissed for non-compliance. We also make it clear that any observation made by us in this order as well as by the Tribunal in the impugned order dated 5th June, 2006 are for the purposes of disposing of the interim application filed by the Petitioner and do not have any reference to the merits of the case. The writ petition is dismissed. The Petitioner will appear before the Tribunal on 16th October, 2006 for reporting compliance of the order passed by us.
