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TMI Blog2005 (12) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... unt demanded from the petitioner. There is neither any illegality nor any perversity in that line of reasoning to call for interference by this Court. - 22730 of 2005 - - - Dated:- 8-12-2005 - T.S. Thakur and B.N. Chaturvedi, JJ. [Judgment per : T.S. Thakur, J.]. - The Commissioner of Customs (Appeals), Delhi by an interim order, impugned in this writ petition, passed under Section 129-E of the Customs Act, 1962 directed the petitioner to pre-deposit a sum of Rs. 5 crores, while waiving the remainder of the duty amount held recoverable from it. Dissatisfied with the said order, the petitioner has filed the present writ petition and prayed for a complete waiver of the pre-deposit. 2. The petitioner company is a subsidiary of M/s. Cisco Systems Management B.V. (Netherlands), which in turn, is a subsidiary of M/s. Cisco Inc., USA. The latter of the two companies has entered into agreements with the petitioner for supply of equipment broadly classified into the following four different categories : (a) import of equipment for use in the STP unit; (b) import of equipment for internal use; (c) import of demonstration equipment on loan/returnable basis; and (d) import o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said application and directed a pre-deposit of Rs. 5 crores only as against a demand of Rs. 9.22 crores raised by the Department against it. The present writ petition assails the correctness of the said order, as noticed earlier. 4. We have heard, learned counsel for the parties and perused the record. 5. In the order made by him the Commissioner has noticed that the goods had been sold to unrelated buyers at various percentages of the GPL ranging between 10% to 90%. Some of the invoices which the petitioner had placed on record before the Commissioner even showed that goods had been sold at 0% of GPL to M/s. Wipro Ltd., which was in the opinion of the Commissioner an absurdity of sorts. The Commissioner noted from the data furnished to him that 70% of the invoices raised to unrelated buyers were at a price ranging from 52% to 69% of the GPL. Whereas about 30% of the such invoices were at a price higher than 69% or less than 52% of the GPL. The Commissioner has, on that basis, prima facie, drawn the conclusion that the GPL has no sanctity whatsoever and that the petitioner's invoicing pattern was wholly arbitrary. The logic underlying the invoicing system had not, it appears, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for hearing of the appeal on merits. The answer to that question would largely depend upon the facts and circumstances of each case which the appellate authority has to consider while examining its discretion. 8. It was argued, on behalf of the petitioner, on the authority of the decision of this Court in Sri Krishna v. Union of India, 1998 (104) E.L.T. 325 that insistence upon a pre-deposit in cases where the appellant is most likely to be exonerated from payment will itself amount to undue hardship. This Court has in Krishna's case (supra) observed : "Mr. M.L. Bhargava, the learned Counsel for the respondent submitted that the impugned order being a discretionary order is not liable to be interfered with in exercise of writ jurisdiction of this Court. He relied on the decision of the Supreme Court in S.I. Coir Mills v. Addl. Collector, Customs, AIR 1976 S.C. 1527 and Oswal Weaving Factory v. State of Punjab, AIR 1966 Punjab 532. Suffice it to observe that while disposing of an application under Section 129 of the Customs Act, 1962 the Tribunal is obliged to adhere to the question of undue hardship. The order of the Tribunal should show if the pleas raised before it, have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to given an undertaking to refund or adjust against future dues." 10. To the same effect are the decisions of the Apex Court in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. and Ors. [1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 330], State of Madhya Pradesh v. M/s. M.V. Vyavsaya Co., AIR 1997 SC 993 and Upadhyay and Co. v. State of U.P. and Ors., (1999) 1 SC 81. The following observations made by the Supreme Court in Dunlop India's case (supra) are instructive : "In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizon's faith in the impartiality of public administration, 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lous results and had, therefore, to be avoided. Besides, we cannot ignore the fact that the entire object underlying the exercise undertaken by the authorities below was to determine the true transaction value of the imported goods keeping in view the fact that the seller and the buyers were related parties and taking into consideration the transaction value of identical goods or of similar goods in sales to unrelated buyers in India. The Commissioner's order including that passed by him on 24th October, 2005, dismissing the application filed by the petitioner for modification, takes into account the relevant facts and circumstances and determines tentatively the pre-deposit at Rs. 5 crores which determination needs to be respected in the absence of any manifest irrationality or perversity in the impugned order. That is true even about the total outstanding against the petitioner regarding which the Commissioner has in the later order observed: "There was an outstanding demand of Rs. 9.22 crores against the applicant and so they were directed to deposit Rs.5 crores out of this Rs. 9.22 crores. Even if Rs. 1.11 crores (which is lying excess with the Department) being the differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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