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Judgment
CM Appl. 1223/2014
Exemption is allowed subject to all just exceptions.
The application is disposed of.
W.P.(C) 611/2014 & CM Appl. 1222/2014
Issue Notice. Notice is accepted by Mr. Satish Kumar, Adv.
The petitioner is aggrieved by the order of the Commissioner (Appeals) on 30.12.2013 whereby its request for waiver of balance pre-deposit to the tune of Rs. 34,77,62,926/- with was rejected.
The petitioner imports concentrated alcoholic beverage; the assessment relates to the period from 4th May, 2001 to December, 2010. A differential demand duty was made by the Assistant Collector of Customs by the order in original dated 29.3.2011. That order was appealed and the Assistant Commissioner''s order was eventually set aside. By a later order dated 16.4.2013 the Assistant Commissioner provisionally assessed the bills of entry for a period in question and directed to pay differential duty of Rs. 1,35,76,19,355/- and interest in accordance with the Customs Act. The petitioner argues that the Appellate Commissioner took note of the fact that the total liability determined was Rs. 4,14,05,57,910/- out of which the amount of Rs. 2,78,29,38, 555/- had been paid at the time of clearance. This led to the differential duty in assessed amount of Rs. 1,35,76,19,355/- by the Assistant Commissioner. The Appellate Commissioner noted that the department had encashed the bank guarantee to the extent of Rs. 1,00,98,56,429/- on 26.5.2011 after the first order of the Assistant Commissioner. In these circumstances the balance which remained was Rs. 34,77,62,926/-. The Appellate Commissioner noted that this amount was to the tune of 8% of the total demand of assessed liability i.e. 414.05 crores. Nevertheless the Commissioner refused to grant any relief to the writ petitioner who claims that this resulted in grave hardship as his appeal would not be considered at all.
The learned counsel for the revenue on the other hand contends that Commissioner acted within his rights to exercise his discretion having regard to the circumstances and that this Court should not exercise discretion under Article 226.
We have carefully considered the submissions as well as the order in original and the impugned order. Undoubtedly the amounts deposited on various duties by the petitioner, out of the assessed liabilities of Rs. 414.05 crores is to the tune of 92%, i.e., over Rs. 380 crores. The approach of the Commissioner would undoubtedly result in the petitioner''s right to appeal being defeated. The Court does not see any overwhelming interest in denying the relief as there is no material on record to suggest that there was any mis-declaration to deny relief to the petitioner.
In the circumstances the impugned order to the extent it refuses the assessee''s request for waiver of deposit to the tune of Rs. 34,77,62,926/- along with interest is hereby set aside. The Appellate Commissioner shall consider the arguments of the parties in the petitioner''s appeal at his earliest convenience, and in any case within 4 months from today and communicate his orders directly to the parties. The petition is allowed in the above terms.
Order dasti.