Delhi High Court
Shubh Impex vs Union Of India & Ors. on 27 April, 2018
$~6.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 138/2018 and CM No.
593/2018
Date of decision: 27th April, 2018
SHUBH IMPEX ..... Petitioner
Through Mr. Priyadarshi Manish, Ms. Anjali
J. Manish and Ms. Nidhi Saini, Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Kirtiman Singh, CGSC for
UOI.
Mr. Sanjeev Narula, Sr. Standing Counsel
with Mr. Abhishek Ghai Advocate for
Customs.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE PRATHIBA M. SINGH
SANJIV KHANNA, J. (ORAL):
The petitioner M/s Shubh Impex, sole proprietorship of Manish
Sobti, had imported „hooks and eyes fastening strips‟, the total value
of which as per Bill of Entry dated 29th September, 2017 was
Rs.13,28,470.20.
2. The value of the consignment is not disputed by the
respondents.
3. The petitioner states that the imported goods fall under Custom
Tariff Heading (CTH) 83081010 and accordingly customs duty of
W.P. (C) 138/2018 Page 1 of 4
Rs.3,70,008/- would be payable.
4. The respondents however submit that the imported "hooks and
eyes fastening strips" fall under Chapter Heading 6212 and would
accordingly attract duty of Rs.16,82,38,370/-, as has been held in the
impugned order dated 15th November, 2017 passed by the Assistant
Commissioner Group-4, ICD-Import, TKD, New Delhi.
5. The petitioner has challenged the assessment order dated 15 th
November, 2017 and submits that the goods should be classified under
CTH 83081010.
6. It is an accepted and admitted position that the impugned order
dated 15th November, 2017 can be challenged in appeal, but the
petitioner to avail of the appellate remedy, has to make a pre-deposit
of Rs.1.27 crores being 7.5% of the duty imposed.
7. The petitioner, on directions of this Court, has filed an affidavit
stating his annual turnover and financial position for the year ending
March, 2017. The petitioner had turnover of Rs.1.15 crores and had
earned net profit of Rs.21.08 lakhs. As per income tax return for the
Assessment Year 2017-18, the petitioner had gross income of
approximately Rs.17 lakhs.
8. We agree with the counsel for the petitioner that direction to
deposit Rs.1.27 crores as a pre-condition for hearing of the appeal, in
the facts of the present case and in view of the nature of the
controversy involved, would deprive and deplete the petitioner of his
cash-in-hand and would completely disable and paralyse business
operations. Condition and requirement to make complete pre-deposit
of Rs.1.27 crores would not be appropriate and correct given the
W.P. (C) 138/2018 Page 2 of 4
financial condition and background of the petitioner, who would suffer
financial breakdown and irreparable harm. We also record that the
plea raised by the petitioner prima facie has merit and requires
consideration. This is not a case of clandestine or dubious import.
9. The respondents have challenged and questioned
maintainability of the writ petition in view of the alternative remedy.
10. Given the aforesaid facts, while we are inclined to accept the
preliminary objection of the respondents on the alternative remedy, we
are also inclined to interfere and relax the condition of pre-deposit.
We would direct that on the petitioner making a pre-deposit of
Rs.5,00,000/- in addition to Rs.3,70,008/-, the appeal which would be
filed by the petitioner would be entertained by the first appellate
authority. The pre-deposit would abide by the result of the appeal.
First Appeal, if preferred within 21 days, would not be rejected on the
ground of limitation.
11. In Pioneer Corporation versus Union of India, 2016 (340)
ELT 63 (Del), a Division Bench of this Court has held that the High
Court while exercising writ jurisdiction under Article 226 of the
Constitution can exercise discretion and reduce the pre-deposit in rare
and deserving case, notwithstanding the amendment made under
Section 35F of the Customs Act. The statute has not withdrawn or
taken away the said power vested in the Writ Court, which should be
exercised in rare but compelling and deserving cases, when the cause
of justice requires such reduction.
12. Counsel for the petitioner apprehends that the petitioner may
have to file second appeal before the Customs, Excise and Service Tax
W.P. (C) 138/2018 Page 3 of 4
Appellate Tribunal. We would observe that the plea/contention, at this
stage, is hypothetical. At this stage, we need not pass any order and
leave it open to the petitioner to file an appropriate application or file a
fresh writ petition, if required.
13. Petitioner submits that the first appellate authority should hear
the appeal expeditiously. It would be open to the petitioner to make
such request before the appellate authority, who would consider the
request keeping in view the limited questions raised and the quantum
of payment raised.
14. The writ petition is disposed of in the aforesaid terms, with no
order as to costs.
Dasti under signature of the Court Master.
SANJIV KHANNA, J.
PRATHIBA M. SINGH, J.
APRIL 27, 2018
b/VKR
