2016 (11) TMI 1376 - HC - Customs

Pre-deposit - correctness of availment of duty drawback - Held that - in the interest of justice, the Commissioner of Customs (Appeals) (when approached by the aggrieved parties) should proceed to deal with the merits provided the entities ensure that the principal deposit amount mandated (i.e. 7 %) in respect of the basic duty drawback element (regardless of the penalty of like amount) is paid by each of the five entities. Likewise, if individual liabilities imposed by the adjudicating authority are appealed against vis-a-vis specific amounts indicated, ignoring the joint and several liability made generally (in the Order-in-Original) against such appellants, their appeals too shall be heard on the merits, subject to such pre-deposit - petition disposed off - decided partly in favor of petitioner.

Summary

Issues:
Challenging an Order-in-Original regarding duty drawback appropriateness, joint and several liability of individuals, pre-deposit requirements for appeals, liability of partnership concern.

Analysis:
The judgment pertains to a petition challenging an Order-in-Original issued by the Joint Commissioner of Customs regarding alleged wrongful availment of duty drawback. The petition primarily questions the appropriateness of the demands made twice over in the order and expresses concerns about the difficulties in availing appellate remedies before the Commissioner of Customs (Appeals).

Upon considering the submissions, the court notes that the liability fixed on the individuals is joint and several concerning the principal amount due and penalties imposed. Specific sums have been indicated for individual Directors/Proprietors of the entities involved. The court emphasizes that in the interest of justice, the Commissioner of Customs (Appeals) should address the merits of the appeals if the entities ensure payment of the mandated principal deposit amount (7½ %) for the basic duty drawback element by each entity. Appeals against individual liabilities, ignoring the joint and several liability, will be heard subject to pre-deposit requirements.

However, a distinction is made for a partnership concern, M/s. White Swan Inc., which is not an incorporated company. In case of an appeal on its behalf, the concerned proprietor must pay the mandatory pre-deposit amount. The court clarifies that this exception applies to M/s. White Swan Inc. specifically.

In conclusion, the writ petition and the pending application are disposed of based on the above terms, outlining the pre-deposit requirements for appeals and the liability of the partnership concern separately. The judgment provides clarity on the pre-deposit conditions for appealing parties and sets a precedent for addressing joint and several liabilities in such cases.