Delhi High Court
Ideal Exports vs Commissioner Customs Icd Tkd on 12 December, 2011
Author: Sanjiv Khanna
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CUSAA 50/2011
% Date of Decision : 12th December, 2011.
IDEAL EXPORTS ..... Appellant
Through: Mr. Praveen Agrawal, Adv.
versus
COMMISSIONER CUSTOMS ICD TKD ..... Respondent
Through: Ms. Sonia Sharma, Adv. for R1 &
R2
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.V. EASWAR
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
SANJIV KHANNA,J: (ORAL)
1. The present appeal under Section 130 of the Customs Act, 1962
impugns order dated 19.9.2011 passed by the Customs, Excise and
Service Tax Appellate Tribunal (Tribunal, for short). The impugned order
dismisses the miscellaneous application filed by the appellant in which
prayer made was that the order dated 26.11.2010 dismissing their
application for waiver of pre-deposit should be recalled and complete
waiver of pre-deposit should be made.
2. Learned counsel for the appellant submits that the Tribunal has
failed to consider the legal position as in the present case the appellant
had achieved 67.9% of the export requirement in value of terms. It is
further submitted that the appellant has passed through very difficult times
and is almost a mental wreck. Lastly it is submitted that appellant may
be granted time to make payment of the pre-deposit in monthly
instalments of Rs.50,000/- each.
3. We have considered the contentions raised by the appellant but are
not inclined to entertain and accept the said pleas. The appellant had
imported 144.163 MTs of brass scrap in 1998, almost 12 years back. He
did not pay any import duty on the said scrap as he had furnished an
undertaking that he would fulfill obligation of export of 134.105 MTs in
form of builder hardware. As per the notification, the appellant was
required to submit details of exports made within one month from the
expiry of the period of export obligation. This was not submitted. As per
the respondents, the appellant had only fulfilled 14.977% of the export
obligation and had exported brass hardware weighing 20.0849 MTs. The
appellant had failed to account and meet the export obligations in respect
to the balance brass scrap which was imported.
5. The appellant had earlier filed an appeal against the adjudication
order dated 13.5.2002 which was allowed by the Tribunal with a view to
grant one opportunity to the appellant to produce evidence to show that he
had fulfilled the export obligations. In spite of said opportunity the
appellant could not produce evidence to show that he had fulfilled the
export obligation and had exported hardware of the requisite quantity.
Thus, the aforesaid facts and the shortfall in export has been established.
6. The export obligation, as per the license expired on 5.11.2000.
Thus the customs duty, interest etc. have remained unpaid for last 11
years. The Tribunal has directed upon the appellant to deposit the balance
amount of customs duty which was payable on the un-exported quantum
of the brass scrap. The total customs duty payable on the aforesaid
amount works out to Rs.25,99,154/-. The respondents had invoked the
bank guarantee and have recovered Rs.7,95,186/- and the appellant had
paid Rs.3 lakhs on 22.2.2008 as a pre-deposit when the earlier appeal was
filed. The appellant has to make payment of Rs.10,28,337/-. The tribunal
has directed that this pre-deposit should be made. The penalty of Rs.6
lakhs and interest which may be more than duty unpaid was not directed
to be paid.
7. Contention of the appellant that the authorities have failed to
examine the plea with regard to the FOB value is not correct as the
Commissioner of Customs has specifically examined and rejected the
same. He has held that it was necessary for the appellant to export the
required quantity in MTs. The requirement of value addition is an
additional requirement and not the primary condition or an alternative
condition. The primary condition as per the Commissioner of Customs is
the requirement to fulfill the quantity requirement i.e. in MTs. The
appellant has not produced before us the notification under which the duty
free import was made and has not tried to establish and show that the
value addition requirement is a primary requirement and not the additional
requirement.
8. With regard to extension of time to make payment of balance
amount towards customs duty, we are inclined to extend the time by a
period of three months, considering the peculiar circumstances and
hardship pointed out by the appellant. Payment should be made in three
equal monthly instalments. First instalment should be paid on or before
31.1.2012 and the balance instalments would be paid before 29.2.2012
and 31.3.2012. It is clarified that in case payment of pre-deposit in terms
of the aforesaid conditions is made, the appeal pending before the tribunal
will not be dismissed.
9. The appeal is disposed of. We clarify the observations made above
are for the disposal of the present appeal and will not constitute as binding
findings when the appeal is finally heard by the tribunal. No costs.
SANJIV KHANNA,J
R.V.EASWAR, J
DECEMBER 12, 2011
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