Decided on January 18,1991



K. Sankararaman, Member (T) - (1.) THE four stay petitions and the related four appeals arise from a common order in appeal bearing Nos. 1183, 1184, 1185 and 1186/90 dated 27-7-1990 passed by the Collector of Customs (Appeals) Calcutta. As the issues involved are common, they are disposed of by this common order after a common hearing.
(2.) Sri K.C. Lahiri, learned consultant, appeared for the petitioners. He submitted that the Collector (Appeals) had dismissed the appeals on the grounds of failure to comply with the provisions of Section 129E of the Customs Act, 1962. He stated that initially they had pressed their ease for waiver of pre-deposit of duty demanded on the prima facie merits of their case when they appeared for a personal hearing before him on 7-6-1990. When on 19-7-1990 they received a common memorandum dated 17-7-1990 from the Collector (Appeals) directing them to pay the duty involved before 25-7-1987 and appear for hearing on 27-7-1987 along with the evidence of payment of the duty amount in question, they had requested for time to enable them to file a stay petition on financial hardship after the return of the appellant from Delhi by 3-8-1990. This was not granted by the Collector (Appeals), who instead passed his impugned order rejecting their appeals for non-deposit of the duty demanded. Sri Lahiri referred to the decision of the Special Bench A of the Tribunal reported in 1990 (49) ELT 280 in the case of Textile Bearings (KOI) (Pvt.) Ltd. v. Collector of C. Ex., wherein that Bench had observed that it is settled position of law that it is always open to the applicant to prefer another stay petition if it can point out any other new facts or provisions of law. In this case they had not filed a stay petition though they had prayed for stay by advancing arguments on merits during the hearing before the Collector (Appeals). They requested for time to file a stay application based on their financial hardships. As this request was rejected they are aggrieved. The decision had been taken by the Collector (Appeals) without giving them the opportunity to state their case based on the alternate ground of financial hardship. He briefly indicated that on merits also they have a strong case. He referred to the order of the Assistant Collector wherein he had admitted that he had not found any evidence of deliberate undervaluation or suppression of facts to evade customs duty. There is another observation that the department does not have evidence of proper valuation of the imported parts. He had rejected the evidence furnished by them in support of the value of the goods in question but the evidence relied upon by him was not admissible on the same ground. Their value was rejected and a higher value applied without disclosing the basis. He, therefore, pleaded that the stay prayed for may be granted. Sri M.N. Biswas, learned senior departmental representative, opposed the prayer for stay. He supported the impugned order. The required opportunity to explain their case for grant of stay had been given by the Collector (A) and he had given them notice to pay the disputed amount and dismissed the appeal under Section 129(E) of the Customs Act, 1962 only on their failure to pay the duty demanded. Proper procedure had been followed and the present stay petition may, therefore, be dismissed.
(3.) WE have considered the arguments advanced by both the sides. WE have perused the records. WE find that a preliminary point has been raised by the applicants that the Collector (Appeals) refused to heed their request for permission to file a stay application wherein they wanted to agitate the question of financial hardship and gave them a very short time to make the deposit of the disputed amount of duty. He had observed in his order dismissing the appeal that the filing of a stay petition or grant of a further hearing would not only be redundant but also unwarranted and futile. When a specific request for permission to file the stay application on the question of financial hardship was made they should have been given a short time to do so. It should not have been rejected as unwarranted and futile. Such prejudging of the issue is against the principles of natural justice. The plea of financial hardship had not been raised and it was an alternate plea after the earlier plea based on the merits of the issue were found to have not found acceptance by the Collector (Appeals). They have even mentioned in their petition that the Collector (Appeals) indicated during the hearing that it was a fit case for remand, though the same is not on record. Giving the applicants the benefit of doubt such an indication or even a hint could have given a hope perhaps a false one, that their appeals were being allowed remanding the cases for de novo adjudication. In such a situation, the dismissal of the appeals on the ground of non-deposit of the duty demanded giving them a short time of about a week was not in order. WE, therefore grant the stay prayed for.;

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