2014 (12) TMI 193 - HC - Customs

Restoration of appeal before tribunal - waiver of pre-deposit - Anti-dumping duty - Notification No.128/2001-Customs dated the 21st December, 2001 - levy of duty on goods imported and provisionally cleared by the appellant - Held that - It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality v. Amalendu Das, 1984 (1) TMI 63 - SUPREME Court and CCE v. Dunlop India Ltd., 1984 (11) TMI 63 - SUPREME Court cases without analysing factual scenario involved in a particular case. - Two significant expressions used in the provisions of Section 35F are undue hardship to such person and safeguard the interests of the Revenue. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in view. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue. Order of tribunal directing the assessee to deposit a sum of ₹ 2,50,00,000/- (Rupees two crores and fifty lakhs only) modified - The appellant directed to deposit a sum of ₹ 1,75,00,000/- (Rupees one crore seventy five lakhs only) - Appeal restored conditionally.

Issues Involved:
1. Classification of imported goods under specific sub-headings.
2. Imposition of anti-dumping duty based on relevant notifications.
3. Compliance with provisional duty bonds and final determination of duties.
4. Financial hardship and pre-deposit requirements for appeal.

Detailed Analysis:

1. Classification of Imported Goods:
The appellant filed three bills of entries for importing goods under Chapter 8539, specifically for "Electric filament or discharge lamps, including sealed beam lamp units and ultra-violet or infra-red lamps; arc lamps." The goods were classified under sub-headings 853921, 853931, 853939, and 853990. The classification of these goods was pivotal as it determined the applicability of anti-dumping duties.

2. Imposition of Anti-Dumping Duty:
Pursuant to Notification No.128/2001-Customs dated 21.12.2001, the imported goods were provisionally assessed. Following investigations, Notification No.138/2002-Customs dated 10.12.2002 was issued, imposing anti-dumping duties on Compact Fluorescent Lamps (CFL) originating from China and Hong Kong. The notification specified that the anti-dumping duty applied to goods under sub-heading 853931. The department demanded anti-dumping duties based on this notification for the provisionally cleared goods.

3. Compliance with Provisional Duty Bonds and Final Determination of Duties:
The appellant executed Provisional Duty Bonds under Section 18(1) of the Customs Act, 1962, allowing provisional clearance of goods. The final determination of duties was based on the findings of the designated authority, which confirmed the imposition of anti-dumping duties on CFLs from China and Hong Kong. The department calculated the duties based on the working sheet provided, leading to significant financial demands on the appellant.

4. Financial Hardship and Pre-Deposit Requirements for Appeal:
The appellant's appeals were initially dismissed for non-compliance with pre-deposit requirements. The Tribunal, referencing similar cases like Picasso Overseas v. CC Chennai, directed a pre-deposit of Rs. 2.50 crores. The appellant argued financial hardship and referenced other judgments, including Dyna Enterprises and Plaza Lamps and Tubes Ltd., seeking modification of the pre-deposit order. The Tribunal, however, maintained its stance, only extending the compliance period.

Judgment and Modifications:
The High Court acknowledged the arguable issue regarding the applicability of Notification No.138/2002 to goods under sub-headings other than 853931. Recognizing the financial hardship and the extensive delay in adjudication, the Court modified the Tribunal's order. The appellant was directed to deposit Rs. 1.75 crores by a specified date, with the balance duty pre-deposit waived until the appeal's disposal. This modification aimed to balance the appellant's financial constraints and safeguard the Revenue's interests.

Conclusion:
The judgment addressed the classification dispute, the applicability of anti-dumping duties, compliance with provisional assessments, and the financial implications for the appellant. The High Court's modification provided relief while ensuring the appeal's progression on merit.

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