Delhi High Court
Varsha Poly Products (P) Limited vs C.C. Kandla And Anr. on 1 May, 1994
Equivalent citations: 1994IIAD(DELHI)767, 1994(29)DRJ422
Author: M.J. Rao
Bench: M.J. Rao
JUDGMENT K. Shivashankar Bhat, J.
(1) The petitioner is aggrieved by the order of the 2nd respondent (popularly referred as CEGAT), whereby, the petitioner was directed to deposit Rs.10 lakhs within 3 months of the order as a condition to consider the appeal filed before it by the petitioner; recovery of the balance amount was stayed pending disposal of the appeal.
(2) Petitioner imported 385 Mts of Polystyrene vide spec General Purpose and 122.5 Mts of Polystyrene vide spec High Impact Grade from Korea. Bills of Entries were filed to enable the -:2:- customs clearance. The Customs Authorities released 80% of the imported goods provisionally, on petitioner executing a bond for differential duty pending enquiry and on payment of a duty of Rs.69,15,251.00 . According to the petitioner 20% of the imported goods valued at Rs.l5,81,49l.00 is still with the authorities. Thereafter a show cause notice was issued to the petitioner on 23.2.1993, (3) Show cause notice alleges that there has been misdeclaration by the petitioner resulting in large scale under-valuation in the import of the goods in question. Consequently, it was proposed to re-determine the value and the duty and differential duty was sought. The petitioner replied and thereafter an order came to be made rejecting the petitioner's explanation. The value of the goods in question were re-determined. Further, personal penalty was also decided to be levied. The differential duty was demanded. In respect of 385 Mt of GPPs the differential duty was Rs.25,12,937.00 , in respect of other items the differential duty was Rs.9,81,988.00 . Thus the total differential duty demanded was Rs.34,94,925.00 Petitioners filed an appeal before the Appellate Tribunal. Along with the appeal petitioner sought stay of the recovery of the duty and the penalties levied. The Appellate Tribunal directed the petitioner to deposit a sum of Rs.10 lakhs.
(4) According to the petitioner the respondents are in possession of 20% of the goods imported by the petitioner and the value of the said 20% goods could cover the differential duty demanded. It was also contended that the Tribunal has not considered the prima facie case being in favor of the petitioner.
(5) The learned Standing Counsel for the respondents pointed out that even though 20%'of the imported goods are with the respondents, those goods are also liable to be sold and the respondents are entitled to collect customs duty in respect of those goods also. The learned counsel pointed out that the value of the said 20% of the goods will not be sufficient to meet the duty liability in respect of those goods and therefore, the said goods can not be considered as a sufficient security regarding the differential duty now demanded.
(6) The learned counsel for the petitioner however, tried to point out that there is some difference in the manner of valuing the imported goods.
(7) We do not think, we can go into these aspects. The fact remains that the 20% of the imported goods which are not cleared and released to the petitioner are also liable to the customs duty and prima facie the case put forward by the learned counsel for the respondents shall have to be accepted regarding the quantification of the duty leviable on those 20% of the imported goods. When we say primafacie, we make it clear, that we are not expressing any opinion on the respective cases pleaded, but we are only pointing out that at this stage we have to accept the statement made by the learned counsel for the respondents.
(8) A perusal of the order of the Appellate Tribunal shows that the Appellate Tribunal has considered the various aspects. The Appellate Tribunal was considering as to what kind of interim order should be made regarding the duty demanded from the petitioners, as a condition for entertaining their appeal. At this stage it is not possible to give a definite finding as to whether the petitioner will be succeeding in the appeal or will be failing ultimately. The Appellate Tribunal has only to examine the quality of the prima facie case pleaded by the appellant before it.
(9) No case was pleaded nor made out as to the hardship of the petitioner. In the circumstances, we are constrained to hold that it is not possible for us to interfere with the discretionary order of the Appellate Tribunal. The approach of the Appellate Tribunal cannot be held to be erroneous in the instant case. The Appellate Tribunal has not ignored any relevant material while deciding the stay application of the petitioner. In fact the appellate Tribunal has shown consideration by reducing the amount to be deposited by the petitioners. The writ petition is accordingly dismissed.