2011 (2) TMI 535 - AT - Customs

Demand - Advance licence - the amount of Rs. 15.97 crores, which was directed to be deposited, is the amount of duty forgone for raw materials imported by the appellant under 37 advance licences - It is obvious that the counsel for the appellant conceded inability to bring on record any documentary evidence of discharge of export obligation in respect of the 37 advance licences - Even though conclusive evidence of discharge of export obligation in respect of the remaining advance licences (69 in number) like EODC was not produced by the appellant, the Bench did not ask for pre-deposit of the duty amount relating to the imports made under the said advance licences in any case - The appellant, in the present application, does not claim that there was some new development after the passing of the stay order or that the documents now produced with the present application were not in existence when the stay order was passed - Hon ble High Court frowned upon the Tribunal s tendency to entertain such applications after noting the functional constraints of the Tribunal - Decided against the assessee

Issues:
1. Failure to pre-deposit ordered amount within specified time frame.
2. Application seeking modification of the pre-deposit order based on export obligation discharge proof.
3. Allegation of abusing the tribunal's process by the appellant.
4. Financial hardships claimed by the appellant.
5. Consideration of financial difficulties and export obligation discharge evidence.
6. Legal precedents cited by the JCDR to support rejection of the modification application.
7. Lack of change in circumstances since the original stay order.
8. Prima facie case for modification not established.
9. Dismissal of the appeal due to non-compliance with Customs Act.

Detailed Analysis:

1. The appellant failed to comply with the tribunal's directive to pre-deposit Rs. 15.97 crores within the stipulated eight-week period, as ordered in the previous judgment.

2. The appellant filed an application seeking modification of the pre-deposit order, claiming to have fulfilled export obligations related to raw materials imported under advance licenses. The application included various documents supporting their claim, such as export fulfillment details and financial records.

3. The JCDR alleged that the appellant abused the tribunal's process by not providing necessary documents during previous proceedings and argued that the current application lacked merit.

4. The appellant's counsel cited financial hardships faced by the client, supported by the company's BIFR order and balance sheets, as reasons for seeking modification of the pre-deposit order.

5. The JCDR contended that the appellant failed to provide conclusive evidence, such as Export Obligation Discharge Certificates (EODC), to substantiate their claims of fulfilling export obligations, thereby questioning the basis for seeking modification.

6. Legal precedents, including judgments from the Bombay High Court and a Tribunal decision, were cited to bolster the argument for rejecting the modification application based on lack of changed circumstances and failure to establish a prima facie case.

7. The tribunal noted that there had been no change in circumstances since the original stay order and that the appellant did not present any new developments or documents to warrant modification.

8. Considering the lack of new evidence or changed circumstances, the tribunal found the modification application to be devoid of a prima facie case and therefore liable for rejection.

9. Consequently, the appeal was dismissed due to the appellant's failure to comply with the provisions of Section 129E of the Customs Act, reinforcing the dismissal of the modification application.

This detailed analysis encapsulates the key issues, arguments, and legal principles discussed in the judgment delivered by the Appellate Tribunal CESTAT, Mumbai.

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