Calcutta High Court
Karan Exports (India )Pvt. Ltd vs Union Of India & Ors on 22 May, 2009
Author: Soumitra Pal
Bench: Soumitra Pal
WP No. 800 of 2007
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
KARAN EXPORTS (INDIA )PVT. LTD.
Versus
UNION OF INDIA & ORS.
For Petitioner : Mr. P.K. Dutta, Advocate with Mr.S.Banerjee, Advocate
For Respondent : Mr. S. B. Saraf, Advocate
BEFORE:
The Hon'ble JUSTICE SOUMITRA PAL
Date : 22nd May, 2009.
The Court : In the writ petition, the writ petitioner has challenged the order dated 25th
April, 2007 passed by the learned Customs, Excise and Service Tax Appellate Tribunal, Kolkata on
various grounds.
Facts in brief are that the petitioner being aggrieved by the order in original had preferred
an appeal before the Commissioner of Customs (Appeals) along with an application for stay. Since the Commissioner passed an order confirming the order in original without considering the application for stay, a further appeal was preferred before the Learned Tribunal. The Learned Tribunal had passed an order dated 25th April, 2007, which is now under challenge, the relevant portion of which is as under:
"5. Under the circumstances, I direct the appellants to predeposit the penalty amount of Rs.1,00,000/- (Rupees one lakh only). Shri Sandip Goel, Director of the appellant Company prays that they should be given eight weeks time from today to make the predeposit. Accordingly, eight weeks time from today to predeposit the penalty amount of Rs.1,00,000/- is granted. The appellants are to report compliance to the lower appellate authority on or before 28th June, 2007. On such predeposit being made and compliance reported, the impugned order shall stand set aside and the 2 matter shall stand remanded to the lower appellate authority for fresh decision on merits. The lower appellate authority shall grant a reasonable opportunity of hearing to the appellants and the appellants are directed to fully cooperate with the proceedings before him and not to seek unnecessary adjournments.
6. In the event of failure to make the predoposit and report compliance to the lower appellate authority by the date specified, the appeal shall stand dismissed.
7. The miscellaneous application and the appeal are disposed off in the above terms."
The grievance of the petitioner is that as a sum of RS.6,45,000/- has already been secured by way of bank guarantee towards duty drawback, appropriate order may be passed directing the Commissioner of Appeal to hear out the appeal which has been remanded by the learned Tribunal without insisting on predeposit of Rs.1 lakh as has been directed.
It has been submitted by the learned advocate for the respondent that in the order in original the duty drawback of Rs.6,45,000/- has been denied and the amount is now lying with the department.
Having heard the learned advocates for the parties since I find that a sum of Rs.6,45,000/- is lying secured with the department, considering such fact the writ petition is disposed of by directing the Commissioner of Appeals to hear out the appeal arising out of the order in original dated 14th November, 2005 without insisting on the predeposit of Rs.1 lakh as directed by the Tribunal by the order dated 25th April, 2007 within a period of eight weeks from the date of communication of this order. The order of the learned Tribunal passed on 25th April, 2007 is modified to the extent as indicated.
It is also made clear that the petitioner shall go on renewing the bank guarantee till order is passed by the Commissioner of Customs (Appeals) and communicated to the parties.
No order as to costs.
All parties concerned are to act on a signed xerox copy of this order on the usual undertakings.
(SOUMITRA PAL, J.) sm AR[CR]