2014 (5) TMI 205 - AT - Customs

Waiver of Pre-deposit Import of HSD - Payment of appropriate duty on the value arrived by Administered Price Mechanism (APM) - Collection of excess amount above the Customs duty - Held that - Judgment in Indian Oil Corporation Ltd. vs. Commissioner of Customs, Kandla 2008 (4) TMI 93 CESTAT, AHMEDABAD followed - The judgement cited by the Ld. Special Counsel apparently not applicable to the facts of the present case as the same is relating to the imported goods Naptha, which was undisputedly not covered under APM, at the relevant time - Following the precedent decisions, the Applicants have been able to make out a prime facie case for total waiver of pre-deposit dues adjudged - Accordingly all dues adjudged, is waived and recovery stayed during pendency of the Appeal - Stay Petitions allowed Decided in favour of assesse.

Issues: Waiver of pre-deposit of Customs duty amounting to Rs.15.15 Crores and Rs.21.37 Crore due to alleged excess collection from customers during the relevant period governed by Administered Price Mechanism (APM); Interpretation of Section 28B of Customs Act, 1962 in light of excess amount deposited into the oil pool account; Applicability of legal precedents in cases of Hindusthan Petroleum Corporation Ltd. and Indian Oil Corporation Ltd. versus Commissioner of Customs.

Analysis:
1. The Applicant sought waiver of pre-deposit of Customs duty totaling Rs.15.15 Crores and Rs.21.37 Crore, contending that during 1998-2001, they imported High Speed Diesel (HSD) and paid duty based on the Administered Price Mechanism (APM). They argued that any excess amount collected from customers was deposited into the oil pool account, as evidenced before the adjudicating authority, and not retained by them. The Applicant relied on legal precedents, including decisions of the Tribunal in cases involving Hindusthan Petroleum Corporation Ltd. and Indian Oil Corporation Ltd., to support their argument that Section 28B of the Customs Act, 1962 should not be applicable in this scenario.

2. The Revenue, represented by the Special Counsel, opposed the waiver, arguing that even if excess amounts were deposited into the oil pool account, it does not negate the application of Section 28B as APM cannot override legal provisions. The Special Counsel referred to a Tribunal judgment involving Indian Oil Corporation Ltd. and Customs Commissioner, Kandla, to emphasize the applicability of Section 28B to imports of Naptha.

3. In response, the Applicant's counsel distinguished the Tribunal's judgment cited by the Special Counsel, highlighting that it pertained to Naptha imports not covered under APM, unlike the present case involving HSD. The Tribunal, after hearing both sides and examining the records, found that the legal issue at hand aligned with the decisions in cases of Hindusthan Petroleum Corporation Ltd. and Indian Oil Corporation Ltd. versus Commissioner of Customs, Kandla. The Tribunal concluded that the Applicants had established a prima facie case for total waiver of pre-deposit dues, citing the inapplicability of the judgment related to Naptha imports and granting a stay on recovery during the appeal's pendency. The Tribunal allowed the Stay Petitions and waived all dues adjudged.

This detailed analysis of the judgment showcases the legal arguments presented by both parties, the interpretation of relevant legal provisions, and the application of precedents leading to the Tribunal's decision to grant the waiver of pre-deposit dues to the Applicants.

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