Ecoplast Private Limited and Another vs Union of India (UOI) and Others

S.C. Pratap, J.—Rule, returnable forthwith. Respondents appear and waive service.

The differential amount of duty amounting to Rs. 74,000/- has been already paid by the petitioners albeit under protest and without prejudice to their rights and contentions in their pending appeal before the Tribunal. What remains is only the penalty amount which is Rs. 20,000/-. The Tribunal itself in its own order found no apprehension at all qua the petitioners'' capacity to pay the said amount if it so becomes necessary. The Tribunal has also observed that there is a prima facie case.

Now, in the facts and circumstances, when a prima facie case is found to exist, when the differential amount of duty has been already fully paid albeit under protest and when an appeal is preferred to the Tribunal, more fair and reasonable order would have been not to deprive the petitioners of having their appeal heard on merits and in accordance with law only because the penalty amount is not deposited, all the more when there is no dispute, even according to the Tribunal, on the total financial soundness of the petitioners in that behalf. Considering the facts and circumstances, one gets the impression that there is in this case over-emphasis on a technicality. Compliance therewith need not have been insisted in this particular case.

The petitioners'' Counsel also emphasized the position that as M/s. Alcudia was an undertaking of the Spanish Government itself and as the invoice of the aforesaid company was authenticated by the Embassy of India in Spain, the petitioners were convinced by the authenticity of the exporter and were further convinced that the price per tone offered by the said exporter genuinely reflected the international price at the relevant time. At this stage, however, the Court is not concerned with this contention. Suffice it to note that in this case, the Tribunal should not have insisted upon deposit of the penalty amount as a condition for hearing the appeal on merits and in accordance with law.

Hence Order : This petition is allowed. The . impugned order dated 2nd December 1987 at Exhibit F is set aside. The petitioners'' pending appeal before the Tribunal against the Collector''s order dated 4th March 1987 issued on 11th May 1987 shall stand admitted. The said appeal shall now be heard and decided on its own merits and in accordance with law. Statement of the petitioners'' learned Counsel is here recorded that in the event of the said appeal being dismissed on merits, the petitioners will comply with the order of payment as may be made against them by the Tribunal.

Rule is made absolute in terms aforesaid but, in the circumstances, with no order as to costs.