2013 (9) TMI 917 - HC - Customs

Waiver of pre-deposit - Enhanced duty draw back - Over-invoicing the export goods - Held that - If on the same set of facts the duty demand is confirmed by the adjudicating authority in respect of all the three entities and penalty is also imposed and the Tribunal in the case of two entities and its proprietor/partners grants full waiver of pre-deposit, then, it is just and proper that even in the third case, total waiver of pre-deposit ought to be granted. No valid reasons are given by the Tribunal for demanding pre-deposit - stay granted.

Summary

Issues:
1. Challenge to pre-deposit order by Access Textiles and Deepak Jhunjhunwala.
2. Challenge to Final Order by Access Textiles and Deepak Jhunjhunwala against order-in-original for non-compliance of pre-deposit order.
3. Dispute related to over-invoicing export goods for enhanced duty drawback.
4. Granting total waiver of pre-deposit by the Tribunal in certain cases but not in others.

Analysis:

The judgment by the High Court of Bombay pertains to Customs Appeal Nos. 34/2011 & 12/2011 filed by Access Textiles and Deepak Jhunjhunwala challenging the pre-deposit order issued by the CESTAT. Additionally, Customs Appeal Nos. 21/2011 & 32/2011 were filed by the same parties challenging the Final Order passed by the CESTAT on 29th October, 2010 due to non-compliance of the pre-deposit order. The core issue in all these cases revolved around over-invoicing of export goods to benefit from enhanced duty drawback. The investigation initiated against Access Textiles, Suresh Enterprises, and Shree Deepak Export revealed proceedings based on the same set of facts and evidence. Notably, the CESTAT had previously granted a total waiver of pre-deposit in similar cases, a decision accepted by the Revenue.

The High Court opined that if duty demand and penalties were confirmed for all three entities based on the same facts, and the Tribunal had granted full waiver of pre-deposit in two cases, it was just and proper to extend the same treatment to the third case. The Court found no valid reasons provided by the Tribunal for demanding pre-deposit in the present scenario. Consequently, the impugned orders dated 29th July, 2010 and 29th October, 2010 were quashed and set aside. The Tribunal was directed to proceed with the appeals on merits without insisting on pre-deposits. The Appeals were disposed of accordingly with no order as to costs. This judgment highlights the importance of consistency and fairness in decisions regarding pre-deposit waivers based on similar circumstances and facts across different cases.