TMI Blog2014 (8) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... .CHAKRABORTY, A.R.(ASSTT. COMMR.). ORDER Per Dr. I.P.LAL; Vide Order No.SO/71325-71331/14 dated 13.11.2014, while disposing the Stay Petitions filed by the Applicants namely M/s.RSI Private Ltd. seeking waiver of customs duty of ₹ 4,56,22,175/- and equal amount of penalty imposed on them under Section 112(b)(ii) of the Customs Act, 1962; personal penalty of ₹ 50.00 Lakh imposed on each of the Directors namely Shri G.D. Bhaiya, Shri Sachin Bhaiya, Shri Sachin Bhaiya, Shri Mridula Bhaiya, Shri Pankaj Bhaiya; and personal penalty of ₹ 10,000/- imposed on Shri Alok Kumar, Authorised Representative and Signatory of the Applicant company, against the total dues adjudged ₹ 11,72,44,352/-, this Tribunal had directed the Applicant company i.e. M/s.RSI Private Ltd. to deposit of 25% of the Customs duty of ₹ 4,56,22,175/- i.e. around ₹ 1.14 Crores and subject to the said deposit, allowed waiver of pre-deposit of remaining dues adjudged against all the Applicants. 2. The Applicants approached the Hon ble High Court against the said waiver order dated 13.11.2013 by filing a Writ Petition No.939(W) of 2014. The Hon ble High Court disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued for failure to comply with the procurement of export obligation and in such a case there is no such stipulation that the demand of duty should be confirmed only after a definite conclusion is arrived at by the Development Commissioner. 4. The Ld.Advocate appearing for the Applicants/Appellants has submitted that the Applicant company has approached the BIFR and after investigation the Board found that the petitioner is a sick industry. The scheme of rehabilitation or revival is in the process of implementation. It is further submitted that the net worth of the Applicant company is in negative and therefore the Applicant cannot be called upon to deposit any amount, irrespective of any circumstances, even if on merit the case is against them, in view of the judgement of Hon ble Supreme Court in the case of Sagarika Acoustronics (supra). 5. The Ld.Advocate submitted a copy of annual accounts for the period April, 2012 to March, 2013 to support their net worth is in negative. 6. The Ld.A.R. for the Revenue has submitted that even if the Applicant company is in BIFR and its net worth is negative, but that itself cannot be the basis for allowing complete waiver to the Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company is under BIFR. According to the assessee, its application dated NIL September, 2005, being Modification Application No./2005, is pending even today before the Tribunal. In the circumstances, we direct the Tribunal to decide the Modification Application No. 2005. We also want the Tribunal to record its findings regarding the net worth of the company. If the net worth of the company is found to be negative, then the Tribunal will consider restoration of the appeal to its file and in which event the matter will have to be decided on merits. If, however, the net worth is found to be a positive figure, the Tribunal will say so, give its reasons and dispose of the modification application in accordance with law. The Civil Appeal is disposed of accordingly. 13. It is the contention of the Revenue, on the other hand that the aforesaid observation of the Apex court, is a judgment passed in the facts and circumstances of the case and binding on the parties to the said case and it cannot be considered as binding precedent as no ratio decidendi be culled out from the said Order. What is ratio decidendi has been explained by the Hon ble Supreme Court in the case of Dalbir S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the Court to spell it out with difficulty in order to be bound by it. In the words of Halsbury, 4th Edn., Vo1. 26, para 573 : The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal s duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a Tribunal for its judgment, all are taken as forming the ratio decidendi. 15. There is no need to elucidate the aforesaid observation any further as these are self explanatory. Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Prints case(supra). Their Lordships observed as: 10. The aforesaid decision is squarely applicable to the facts of the present case. In the circumstances, the contention of the learned Counsel for the petitioner that by dint of the fact that the petitioner is registered as a sick unit with the BIFR, the petitioner is entitled to full waiver of the amount of pre-deposit, does not merit acceptance(emphasis supplied). In view of the findings recorded hereinabove, as well as in the light of the principle laid down in the decisions cited hereinabove, no infirmity can be found in the impugned orders of the Tribunal so as to warrant any intervention by this Court. In the result the petition, fails and is accordingly, rejected. 11. Bearing in mind the principle of law on disposal of the waiver application and analyzing facts and circumstances of the case on a prima facie basis as above we have also now carefully considered the financial hardship expressed by the Ld.Advocate for the Applicants. Besides, we have taken note of interest of the Revenue which also needs to be safeguarded. We find that against a total outstanding dues of around ₹ 11.72 Crores confir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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