RAMESH RANGANATHAN,J. - (1.) The proceedings, under challenge in this writ petition, is a notice of demand to the defaulter dated 27.10.2015 informing the petitioner that the certificate dated 01.07.2015 had been forwarded by the Assistant Commissioner of Customs to the Principal Commissioner of Customs, Hyderabad for recovery of an amount of Rs. 1,30,92,135/ -; the Commissioner had sent the certificate to the Assistant Commissioner who was authorised by the Commissioner under Section 142(1)(c)(ii) of the Customs Act, 1962, read with Rule 4 of the Customs (Attachment of Property of Defaulters for Recovery of Customs Dues) Rules 1995, specifying that an amount of Rs. 1,30,92,135/ - is to be recovered from them. The petitioner was called upon to pay the said amount within seven days failing which steps would be taken to recover the amount in accordance with the provisions of the said Rules. The petitioner was also informed that, in addition thereto, they were liable to pay interest in accordance with Section 11AA of the Central Excise Act, 1944 (for short "the Act") and all costs, charges and expenses incurred in respect of the notice.
(2.) Sri Unnam Muralidhar Rao, learned counsel appearing on behalf of the petitioner, would question the order on the following grounds ie. (i) mere dismissal of the appeal, preferred against the order of the CESTAT, Chennai, would not attract the doctrine of merger; (ii) in view of the subsequent ruling by the CESTAT, Bangalore, in Commissioner of Customs, Bangalore v. Ni Micro Technologies Pvt. Ltd., 2014 (311) ELT 458, the petitioner is not liable to pay customs duty, and the respondents could not have imposed duty on batteries which form part of the cellular phone; (iii) Corporate Debt Restructuring, of the debts due from the petitioner -company was undertaken by the Axis Bank, UCO Bank, State Bank of Hyderabad and Andhra Bank, and the debt due from the petitioner was restructured; as the debts due to these banks and financial institutions are secured debts, they have preference over crown debt in the discharge of liabilities; and (iv) even otherwise, the Circular issued by the Central Board of Excise and Customs dated 28.02.2015 confers a discretion on the Commissioner to grant sanction to pay arrears in instalments upto a maximum of 24 monthly instalments, and on the Chief Commissioner to grant sanction to pay the arrears in monthly instalments greater than 24 and upto a maximum of 36 months; and as the petitioner has submitted a representation dated 03.12.2015, the Chief Commissioner should be directed to grant the petitioner 36 monthly instalments for payment of the arrears.
(3.) Aggrieved by the order passed by the adjudicating authority under the Customs Act, the petitioner herein carried the matter in appeal to the CESTAT, Chennai in Appeal Nos. 989 to 991 of 2010. Following the judgment of the Supreme Court in Twenty First Century Builders v. CC, New Delhi, 2004 (172) ELT 45 the CESTAT, Chennai dismissed the appeals except to the limited extent that fine and penalty were reduced. The CESTAT held that the adjudicating Commissioner had rightly held that the appellants had mis -declared that batteries were parts of IFW telephones with a view to avail the claimed exemption, instead of declaring the same as lead -acid batteries as indicated in the country of origin certificate; the orders of confiscation, and the orders imposing redemption on fines and penalties, passed by the adjudicating Commissioner, were also required to be upheld; and, considering the amounts of duty benefit sought to be availed, penalty and fine was being reduced to Rs. 13 lacs and Rs. 6 lacs respectively. Aggrieved thereby, the petitioner carried the matter in appeal to the Supreme Court under Section 35L of the Act and the Supreme Court, by its order in Civil Appeal No. 10707 of 2010 dated 24.01.2011, condoned the delay and dismissed the appeal.;