Custom, Excise & Service Tax Tribunal
M/S. Hi-Tech Computers vs The Commissioner Of Customs on 23 November, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, BANGALORE SOUTH ZONAL BENCH COURT - I Stay & Appeal No: C/Stay/1482/2010 in C/2439/2010 (Arising out of Order-in-Appeal No: 193/2010 dated 28.10.2010 passed by the Commissioner of Customs (Appeals), Bangalore.) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes M/s. Hi-Tech Computers Appellant Vs. The Commissioner of Customs Bangalore. Respondent
Appearance Shri V. M. Doiphode, Advocate for the appellant.
Shri M. M. Ravi Rajendran, JDR for the Revenue.
CORAM SHRI P. G. CHACKO, HONBLE MEMBER (JUDICIAL) SHRI M. VEERAIYAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 23.11.2011 Date of decision: 23.11.2011 STAY ORDER No._______________________2011 FINAL ORDER No._______________________2011 Per P. G. Chacko (Oral), This application seeks waiver of pre-deposit and stay of recovery in respect of Anti-dumping duty of Rs.6,64,208/-. After examining the records and hearing both sides, we are of the view that the appeal is fit for summary disposal. Accordingly, after dispensing with pre-deposit, we take up the appeal.
2. In adjudication of a show-cause notice, the original authority demanded the above amount of Anti-dumping duty under Notification No.78/2007-Cus. dated 29.6.2007 in respect of a consignment of Compact Disk Recordable (CD-R) imported from Peoples Republic of China. Aggrieved by this demand, the assessee (importer) preferred an appeal to the Commissioner (Appeals) and also filed therein an application for waiver of pre-deposit. This application was disposed of by the appellate authority by order dated 28.9.2010 with a direction to the appellant to pre-deposit an amount of Rs.4 lakhs under Section 129E of the Customs Act within 15 days and report compliance. The amount was not deposited by the party. Consequently the partys appeal came to be dismissed for non-compliance with Section 129E ibid vide Order-in-Appeal No.193/2010 dated 28.10.2010. Hence the present appeal of the appeal. Before proceeding further in the appeal, we may also mention that an application filed by the party seeking extension of time for pre-deposit was rejected by the appellate authority after taking the view that further extension of time was not permissible under the law. We further note that no opportunity of being heard was given to the party before dismissing their appeal.
3. Learned counsel for the appellant submits that a bank guarantee produced by the importer was enforced by the department and thereby an amount of over Rs.2 lakhs was recovered from them. Though learned counsel has claimed strong prima facie case against the demand of Anti-dumping duty on the strength of decision of this Bench in G. M. Exports Vs. Commissioner - 2006 (198) ELT 354 (Tri.-Bang.) and judgment of the Honble Madras High Court in Commissioner Vs. Choice International 2008 (228) ELT 190 (Mad.), he has been fair enough to offer deposit of an amount of Rs.2 lakhs for the limited purpose of the appeal before the lower appellate authority being disposed of on merits. We have heard the learned DR also.
4. In the nature of this case, we are of the view that a total payment of Rs.4 lakhs by the appellant would suffice the purpose of Section 129E of the Customs Act insofar as the assessees appeal before the Commissioner (Appeals) is concerned. An amount of Rs.2 lakhs recovered through encashment of bank guarantee is with the department. The balance amount of Rs.2 lakhs should be deposited by the appellant with the lower appellate authority within a period of eight weeks and report compliance to that authority on or before 8th February 2012 whereupon the assessees appeal shall be disposed of on merits in accordance with law without insisting on further deposit. Needless to say that a reasonable opportunity of being heard also should be given to the appellant.
5. The appeal stands allowed by way of remand. The stay application also stands disposed of.
(Pronounced and dictated in open Court) (M. VEERAIYAN) Member (T) (P. G. CHACKO) Member (J) rv ??
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