Delhi High Court
Rakesh Kumar Aggarwal vs Cegat, New Delhi on 30 March, 2001
Equivalent citations: 2002(143)ELT497(DEL)
Bench: Arijit Pasayat, D.K. Jain
ORDER
1. Challenge in this writ petition is to the order passed by Customs, Excise and Gold (Control) Appellate Tribunal ('Tribunal' in short) disposing of the application filed for waiver of pre-deposit of penalties and stay of recovery thereof during the pendency of Appeal No. C/374/2000/NB and other connected appeals. It directed deposit of Rs. 30 lakhs against the disputed demands of Rs. 90.75 lakhs. The demands have arisen on account of the orders passed by the Commissioner of Customs (in short 'the Commissioner') under the Customs Act, 1962 (in short 'the Act'), the demands raised are as follows:
Show Cause Notice No. Penalty 202/9/89-Pt. II, dt. 21-9-1990 (M/s. Manoj Metals) Rs. 1,50,000/- on M/s. Manoj Metals and Rs. 15,00,000/- on Shri Rakesh Kumar Aggarwal 202/9/89-Pt. VIII, dt. 21-9-1990 (M/s. Jasoria Industries) Rs. 1,50,000/- on M/s. Jasoria Industries and Rs. 15,00,000/- on Shri Rakesh Kumar Aggarwal.
202/9/89-Pt. III, dt. 21-9-1990 (M/s. Aarkay Industries) Rs. 45,000/- on M/s. Aarkay Industries and Rs. 4,50,000/- on Shri Rakesh Kumar Aggarwal.
202/9/89-Pt. V, dt. 21-9-1990 (M/s. Aarkay Sales Corpora-tion) Rs. 1,20,000/- on M/s. Aarkay Sales and Rs. Rs. 12,00,000/- on Shri Rakesh Kumar Aggarwal.
202/9/89-Pt. XI, dt. 21-9-1990 (M/s. M.M. Industries) Rs. 10,000/- on M/s. M.M. Industries and Rs. 1,00,000/- on Shri Rakesh Kumar Ag-garwal.
202/9/89-Pt. VII, dt. 21-9-1990 (M/s. Prominent Industries) Rs. 80,000/- on M/s. Prominent Industries and Rs. 8,00,000/- on Shri Rakesh Kumar Aggarwal.
202/9/89-Pt. X, dt. 21-9-1990 (M/s. Popular Industries) Rs. 1,80,000/- on M/s. Popular Industries and Rs. 18,00,000/- on Shri Rakesh Kumar Aggarwal.
202/9/89-Pt. IX, dt. 21-9-1990 (M/s. Akashdeep Industries) Rs. 90,000/- on M/s. Akashdeep Indus-tries and Rs. 9,00,000/- on Shri Rakesh Kumar Aggarwal.
2. The demands have been raised primarily on the ground that non-ferrous metals, imported by M/s. Minerals and Metals Trading Corporation of India Limited (in short 'MMTC') and procured through MMTC by the eight units aforementioned, owned by the petitioner, were never used in these units for manufacture of final products as required by the relevant import policy but were disposed of in the open market, contrary to the actual user condition. Commissioner came to hold that penalty was imposable in view of admission by the petitioner that the eight units were owned by him and that the raw material allotted to the units during the year 1988-89 were disposed of in the open market through brokers.
3. During the hearing of the application before the Tribunal it was stand of the petitioner that so-called admission cannot be acted upon because they were obtained under coercion and the factual position is to the contrary. Tribunal noticed that Department conducted investigation which revealed that the eight units in question, on whose behalf non-ferrous metals were procured by MMTC (canalizing agent), were located in residential areas of various villages and none of them had any water and electricity connections and the units had no manufacturing capacity. Though the petitioner disputed these conclusions by authorities, Tribunal thought that these matter can be looked into in greater detail during the hearing of the appeal. Stand of the petitioner was that in view of the orders passed by the Income-tax Settlement Commission under the Income-tax Act, 1961 there was no scope for accepting the conclusions of the Customs Authorities. Tribunal observed that the question as to what would be the effect of the order passed by the Settlement Commission would be gone into in detail when the appeals are heared. Prima facie it held that the conclusions of authorities cannot be held to be inconsequential. Considering the various Statutory prescriptions, including the handbook on Import Trade Control Policy, Tribunal was of the view that strong prima facie case for total waiver was not made out and there was no violation of principles of natural justice as sufficient opportunity had been extended to the petitioner who appeared before the adjudicating authority. However, considering the plea of financial hardship, Tribunal directed deposit of Rs. 30,00,000/- within a period of 12 weeks from the date of order i.e. 21st December, 2000. Compliance is to be reported on 9th April, 2001.
4. Learned Counsel for the petitioner submitted that Tribunal has not taken into account relevant aspects and has merely gone on the basis of unfounded allegations about non-user and/or disposal of raw materials allotted in the open market through brokers. It is also submitted that financial condition of the petitioner has deteriorated and he is not in a position to deposit Rs. 30 lakhs as directed by the Tribunal. Learned Counsel for the respondent supported the orders stating that Tribunal has taken a liberal view directing to deposit Rs. 30 lakhs when considered in the background of factual aspect which lead to the adjudication.
5. While exercising the writ jurisdiction in a matter of this nature, the scope for interference is very limited. Unless the order is perverse, unreasonable and/or based on no material, there would be hardly any scope for interference. We find that the Tribunal has analysed the factual position keeping in view the legal principles applicable, in particular it referred to the petitioner's submission about the effect of the order passed by the Settlement Commission. That being the position, we are not inclined to interfere with the order passed by the Tribunal. However, since the period of deposit as fixed by Tribunal is over, we extend the time for deposit till the end of May, 2001. Petitioner shall report compliance before the Tribunal on the 6th of June, 2001 without any further notice.
Petition stands disposed of.