- (1.) Instant petition is directed against the orders passed by the authority dated 18-4-2012 & 1-11-2012. As alleged in the writ petition, the petitioner company is 100% export oriented unit (EOU) and was engaged in manufacture of recycled non-ferrous & ferrous metals and after the letter of permission (dated 20-12-2000) was granted to work as 100% EOU (Export Oriented Unit) by the competent authority, the petitioner company started commercial production w.e.f. 9-3-2001 - 9-12-2003 and during the said period the petitioner company imported mixed metal scrap which was processed/segregated, out of which recycled copper scrap/bras crap/iron scrap etc. was extracted and bills of entry were imported under Notification 53/97-Customs, dated 3-6-1997. As has been further alleged in the writ petition that the unit was entitled to seek exemption from import of inputs subject to fulfilment of the conditions of notification wherein the requirement was to export the goods in lieu of foreign currency and if permitted to sell the goods not appropriate for export in the Domestic Tariff Area (DTA) on payment of duly. In disobedience of LOP made physical exports to the tune of Rs. 43.26 Lacs and sold to other EOUs to the extent of Rs. 37.84 Lacs.
(2.) According to the petitioner no central excise duty was payable and exemption from import of customs duty was valid and as such the petitioner company was entitled for exemption from import on customs duty. However, the authority served a show cause notice dated 22-10-2008 demanding amount of approx. Rs. 2.06 crores towards customs duty for violation of condition of Notification 53/97-Customs, dated 3-6-1997 and after the opportunity being afforded, the assessing authority passed order on 22-11-2011 under Section 28 of the Customs Act in terms of Notification 53/97, dated 3-6-1997 and demand of customs duty amounting to Rs. 2,05,59,822/- was ordered to be recovered along with interest in terms of Section 28AB of the Customs Act, 1962 and apart from it, further sum of Rs. 25,00,000/- shall be liable to pay in terms of Section 125 of the Act and also imposed penalty under Section 112(a) of the Customs Act, 1962, of the same amount to be recovered from the assessee petitioner herein.
(3.) Against the order of the Assessing Authority, remedy, in the ordinary course, has been provided of filing appeal to the Appellate Tribunal. However, to provide effective right of appeal, discretion has been left with the Tribunal to exercise judicious discretion granting exemption from pre-deposit which is otherwise the requirement of law under Section 129E of the Customs Act. Along with the appeal preferred by the petitioner, a separate application was filed seeking exemption from pre-deposit under Section 129E of the Customs Act, 1962. The learned Tribunal examined the application seeking exemption from condition of pre-deposit and taking note of the material which came on record, in para 18 of its order observed that if the petitioner complies with the pre-condition of depositing Rs. 1.25 crores within eight weeks from the date of order as a pre-condition for admission of appeal, there shall be a waiver of balance dues arising from the impugned order and stay on collection of such dues.;