2009 (11) TMI 649 - HC - Customs

Writ - petitioner herein was assessed provisionally on the basis of the investigation done by the designated authority with reference to levy of anti-dumpting duty - petitioner pointed out that when the order had already been made by the Co-ordinate Bench on an identical circumstance, the first respondent should give exemption of duty and take up the appeal on merit - Held that - mere fact that the Tribunal has not accepted the plea of the petitioner as regards binding character of the Co-ordinate Bench does not mean that the Tribunal had not considered the said contention. While there can be no two opinion as to the binding character of the decision of a Co-ordinate Bench on a another Bench, on any particular issue, yet given the freedom to differ from a decision of Co-ordinate Bench and to refer the same decision to a Larger Bench, no fault can be found on discretion exercised by the Tribunal, writ petition is disposed of

Summary

Issues:
1. Quashing of order dated 7-9-2009 and appeal hearing without pre-deposit of duties.

Analysis:
The petitioner sought a writ to quash an order and direct the respondent to hear their appeal without pre-deposit of duties. The petitioner was provisionally assessed for anti-dumping duty, executed a bond, and cleared goods. A final demand was raised later, leading to an appeal. The Tribunal directed a fresh order, but the second respondent dismissed the appeal for non-compliance with pre-deposit. The petitioner approached the Tribunal again, challenging the order. The first respondent directed full pre-deposit for appeal consideration under the Customs Act, 1962. The petitioner argued for waiver based on precedent cases. The Tribunal's order emphasized the balance of convenience favoring the Revenue and directed full duty deposit within eight weeks for appeal consideration.

Analysis (contd.):
The petitioner argued for exemption based on a similar case, emphasizing a prima facie case. Reference was made to a High Court decision granting stay pending waiver application. The Tribunal's order highlighted financial hardship and referred to relevant Supreme Court decisions, directing full duty deposit within a specified timeframe. The judge noted that discretion on duty payment waiver lies with the Tribunal based on prima facie case, balance of convenience, and potential prejudice to the petitioner. The order was found to consider the petitioner's case and financial difficulties but required a partial deposit within a timeframe for appeal consideration.

Analysis (contd.):
The judge clarified that the Tribunal's decision was justified, considering the petitioner's financial difficulties but requiring a partial deposit for appeal processing. The Tribunal's discretion was upheld, emphasizing the freedom to differ from precedent decisions. While financial difficulties were a factor, justice required a partial deposit within a timeframe for appeal resolution. The writ petition was disposed of with the directive for the partial deposit and timely appeal processing without further payment demands. No costs were awarded, and related matters were closed.