2013 (8) TMI 797 - AT - Customs

Application for modification of stay order - Assessee contended that the demand of duty was on import of capital goods and the adjudicating authority while quantifying the demand should have allowed permissible depreciation of value in terms of the Board s Circular No. 305/136/92-FTT r.w. Notification No. 52/2003-Cus. - whether on the available records prima facie case was made out by the parties Held that - An order was sought to be modified the appellate Tribunal should at the outset look for a prima facie case for modification - In case no prima facie case was found by the Tribunal the modification application would be rejected without the need to hold elaborate hearing - court followed the judgement of Baron International Ltd. Vs. UOI (2003 (9) TMI 97 - HIGH COURT OF JUDICATURE AT BOMBAY) - the parameters of a modification application of this kind - The Hon ble High Court almost ruled out the permissibility of review of any order for pre-deposit. - the miscellaneous application had rejected for want a prima facie case for modification of the Stay Order appeal decided against the assessee.

Summary

Issues Involved:
Compliance with pre-deposit order for Customs and Central Excise duty, claim for depreciation of imported goods not raised before adjudicating authority, consideration of modification application for pre-deposit order, parameters for modification application as per Baron International Ltd. case, rejection of modification application, granting time for compliance with pre-deposit order.

Compliance with Pre-Deposit Order:
The judgment concerns compliance with a pre-deposit order issued to a company regarding Customs and Central Excise duty payments. The company was directed to make specific payments within a set timeframe, failing which consequences were outlined. The Managing Director of the company was granted waiver and stay regarding penalties, while compliance with the pre-deposit order was expected. The matter was brought before the bench due to the company's failure to make the required pre-deposit, leading to a subsequent hearing for compliance and consideration of a miscellaneous application.

Claim for Depreciation Not Raised:
The company and its Managing Director sought to reduce the demand of Customs duty by claiming permissible depreciation of imported capital goods. The argument was based on a Board's Circular and a Notification, suggesting a significant reduction in the duty amount if depreciation was considered. However, it was noted that this claim was not raised before the adjudicating authority or in the appeal filed before the Tribunal. The Superintendent (AR) argued against entertaining this claim at a later stage, citing a previous case where the scope of such modifications was examined by the High Court.

Consideration of Modification Application:
The Tribunal carefully considered the submissions regarding the claim for depreciation and the request for modification of the pre-deposit order. It was highlighted that the claim for depreciation was not presented earlier in the proceedings, and the Tribunal had already assessed the case and issued the pre-deposit order based on the information available at that time. The Tribunal referred to the parameters set by the High Court for modification applications and found no prima facie case for modifying the pre-deposit order based on the new claim raised by the appellants.

Rejection of Modification Application:
Following the examination of the modification application and the lack of a prima facie case for modification, the Tribunal rejected the miscellaneous application. It was emphasized that the pre-deposit order was issued after due consideration of the case and supporting records. Additionally, the Tribunal noted that the Stay Order was appealable to the High Court, yet no appeals were filed by the parties. The Tribunal concluded that the modification application seemed to be an attempt to avoid the pre-deposit requirements.

Granting Time for Compliance:
Ultimately, the Tribunal rejected the modification application and granted the appellant-company seven days to make the pre-deposit as mandated by the Stay Order. Failure to comply within the specified timeframe would result in the dismissal of both appeals for non-compliance with the Customs Act, without further notice.