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2015 (11) TMI 1464 - HC - CustomsWaiver of pre-deposit - Confiscation of exported goods - Classification of machined rigs - Classification under Chapter Sub-heading 84829900 or under Drawback tariff item No. 848221 - Held that:- Appellate Tribunal had thought it fit to direct pre-deposit of ₹ 48,03,301/- as against the demand of excess drawback of ₹ 2,71,78,810/-, whereas the Commissioner (Appeals) has thought it fit to direct the petitioners to pre-deposit ₹ 24,00,000/- and ₹ 10,00,000/- in relation to demand of excess drawback of ₹ 48,03,301/-. Evidently therefore, the amount of pre-deposit as directed by the Appellate Tribunal and the Commissioner (Appeals) in more or less similar circumstances is highly disproportionate. Under the circumstances, the case of the petitioners would fall within the ambit of “undue hardship” as held by the Supreme Court in the case of Benara Valves Ltd. v. Commissioner of Central Excise (2006 (11) TMI 6 - SUPREME COURT OF INDIA). Besides, apart from the merits of the order of the Commissioner (Appeals), as pointed out by the learned counsel for the petitioners, the classification issue which is involved in the appeal before the Commissioner (Appeals) stands concluded by an order dated 29.10.2015 of the Appellate Tribunal in favour of the petitioners. Under the circumstances, the petitioners have a prima facie case for waiver of pre-deposit. When the court has found merit in the case of the petitioners and the matter does not involve any disputed question of fact, there is no bar against this court exercising powers under Article 226 of the Constitution of India merely because of the existence of an alternative statutory remedy. Under the circumstances, this court, having already applied its mind to the merits of the case and the scope of the controversy being narrow, does not deem it fit to relegate the petitioners to avail of the alternative remedy under the statute. - relief granted - Decided in favour of assessee.
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