Sahil International vs Commissioner of Customs (Appeals)

V. Ramasubramanian, J.—The petitioner has come up with the above writ petition challenging an order passed by the first respondent directing the petitioner to make a pre-deposit of Rs. 2.00 lakhs for entertaining a statutory appeal. Heard Mr. S. Murugappan, learned counsel for the petitioner and Mr. Xavier Felix, learned counsel for the respondents.

Insofar as pre-deposit condition is concerned, the Appellate Authority is obliged to go into the question of hardship. There are certain parameters upon which hardship can be tested. In the case on hand, the petitioner relied upon three orders, all passed by Commissioner of Appeals. Two of those orders dated 26-3-2010 and 11-7-2013 are in favour of another company by name Sumitomo Corporation of India Private Limited, covering the very same item of import, namely CD MP3. The petitioner also produced yet another order dated 20-4-2012 passed by one Commissioner (Appeals) in favour of the very petitioner herein.

But, unfortunately, by the order impugned in the writ petition, the Commissioner (Appeals) has simply rejected the orders of his predecessors, by a bare statement that he disagreed with them. Even the reasons of disagreement are not indicated in the impugned order.

Hardship is not merely confined to financial hardship. The hardship caused by the inconsistent stand taken by the very same authority, due to the change of officers, is also a hardship that should be taken into account. Assesses are obliged to take note of how a particular point of fact or law is viewed by an authority and they will be justified in seeking consistency of views.

Relying upon the decision of the Supreme Court in Vijay Prakash D. Mehta and Another Vs. Collector of Customs (Preventive), Bombay, , the respondents have taken a stand in a detailed counter affidavit filed by them that in the absence of financial hardships for the petitioner, he is not entitled to the waiver of the precondition deposit. But, as I have stated earlier, hardship need not necessarily arise out of financial hardship. Each officer treating the very same material of import in a different manner, will certainly cause hardship to the assessee and it is this hardship that should have waived the mind of the respondents. Therefore, this writ petition is allowed and the impugned order is set aside. The respondents are directed to entertain the appeal without any condition and pass appropriate orders in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P. No. 1 of 2014 is closed.