2014 (6) TMI 948 - AT - Customs

Waiver of pre-deposit - Differential duty - Non achievement of Net Foreign Exchange Earnings as per performance of export - Appellant had exported the goods manufactured out of the raw materials imported but there is a short fall of exports which was accepted by the appellant. As per appellant the short-fall is approximately 1.63% while the adjudicating authority has recorded the short-fall of approximately 21.47% but DGFT authorities ordered short-fall of approximately 9.32% - Held that as adjudicating authority is at variance against the DGFT authority s findings and the claim made by the appellant, as to there being short fall of 1.63%, the issue needs detailed analysis and needs deeper consideration. Therefore, the appellant should be put to some condition to hearthe appeal for which he has to deposit an amount of ₹ 10,00,000/- (Rupees ten lakhs only). - Stay granted with waiver of balance amount

Summary

Issues: Stay petition for waiver of pre-deposit of confirmed differential duty, interest, and penalties due to shortfall in achieving Net Foreign Exchange Earnings.

Analysis:
The appellant filed a stay petition seeking a waiver of the pre-deposit of an amount confirmed as differential duty, interest, and penalties due to a shortfall in achieving Net Foreign Exchange Earnings as per export performance. The appellant argued that while there was a shortfall in exports, it was approximately 1.63%, contrary to the adjudicating authority's finding of 21.47%. The appellant referred to a DGFT order penalizing them for a 9.32% shortfall and cited relevant legal precedents to support their case. The appellant also highlighted a Board's Circular and judgments from the Tribunal and High Court to contest the duty levied based on the shortfall.

The Tribunal, after hearing both sides, acknowledged the differing findings on the shortfall percentage by the Development Commissioner and the adjudicating authority. Recognizing the need for a detailed analysis of the issue, the Tribunal deemed it arguable and requiring deeper consideration. Consequently, the Tribunal directed the appellant to deposit a specific amount within a specified timeframe and report compliance. The Tribunal decided to hear and dispose of the appeal on merits after the detailed analysis, allowing the waiver of the balance amounts involved and staying the recovery until the appeal's disposal. The decision aimed to address the complex issue of the shortfall in export obligations through a comprehensive review and subsequent resolution in the appeal process.

In conclusion, the Tribunal's judgment focused on the need for a thorough examination of the shortfall in achieving Net Foreign Exchange Earnings, considering the varying percentages reported by different authorities. By directing a deposit and scheduling a detailed analysis for the appeal's final disposal, the Tribunal aimed to ensure a fair and comprehensive resolution of the matter while providing temporary relief to the appellant through the stay of recovery pending the appeal's outcome.