9911796707
TMI Blog2005 (12) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on loan/returnable basis; and (d) import of spare parts for supply to the customers of Cisco Inc. to support replacements of failed parts of original equipment supplied by Cisco Inc. 3. According to the petitioner, the prices of the imported goods are determined on the basis of a reference price list of Cisco Inc. called "the Global Price List" ("GPL" for short) and universally adopted by the Cisco Inc. for all the exports made to different countries. The goods exported by Cisco Inc. are normally made at a discount which varies from equipment to equipment. In the case of capital goods imported for the STP Unit, the value of the imports is equal to 40% of the GPL, which price has been revised to 46% of GPL with effect from 12th June, 2004. Similarly, in the case of equipment imported for internal use the value is equal to 46% of the GPL. That is true in respect of equipment for demonstration also, which are imported at 46% of the price mentioned in the GPL. In the case of spare parts with which, we are concerned in this writ petition, the imports are made at 35% of the price mentioned in the GPL. Keeping in view the special relationship between the selling and the buying comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the invoicing system had not, it appears, been disclosed to the Commissioner by the petitioner as indeed the same was not disclosed even to this Court. What is significant is that the Commissioner found that the petitioner-company had invoiced goods at 35% of GPL in cases where customs duty was leviable, while in cases where customs duty was not leviable such imports have been made at 46% of the GPL. The Commissioner observed : "In the instant case the same goods manufactured by the same supplier have been sold at widely varying prices to different buyers. I observe that the appellant have admitted that they have been invoicing the goods at 35% when Customs Duty is leviable i.e. on imports of Spares and 46% when such duty was not leviable i.e. on imports made for the Software Technology Park (STP) Unit. The buyer and seller being virtually the same in the instant case, no convincing arguments for this blatant difference in the values declared to the Customs have been placed on record." (emphasis supplied) 6. The Commissioner also held that the petitioner was not correct in asserting that a refund of Rs. 18 cror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of undue hardship. The order of the Tribunal should show if the pleas raised before it, have any merit prima facie or not. If the appellant has such a prima facie strong case as is most likely to exonerate him from payment and still the Tribunal insists on the deposit of the amount it would amount to undue hardship." (Emphasis supplied) 9. The present is not, in our view, a case where the demand of duty may be said to be so palpably erroneous or that the appellant is most likely to be exonerated from any such demand. The Commissioner has, in our opinion, rightly held that the matter may be arguable on either side but the very fact that it is so arguable may not call for a total waiver of the pre-deposit. The principles underlying interference by a writ Court with discretionary orders remains firmly settled by a long string of decisions of the Supreme Court. A writ Court, would, therefore, be slow in interfering with the discretionary order like the one in the instant case. That is, especially so where the appellant has not pleaded any financial hardship as such before the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, a Court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bona fide with due regard to the public interest, a court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the Court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital consideration apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest. There are many such factors worthy of consideration. We often wonder why in the case (of) indirect taxation where the burden has already been passed on to the consumer, any interim relief should at all be given to the manufacturer, dealer and the like." 11. On behalf of the petitioners, it was, stre ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
