TMI Blog2012 (11) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... ure-H to the petition in following factual background. 3. The petitioner is a company engaged in manufacturing of textile goods and is 100% Export Oriented Unit. For certain irregularities committed by the petitioners, the departmental authorities carried out verification. Show cause notice was issued and adjudication proceedings were initiated. Adjudicating Authority passed his order-in-original on 22-7-2003 demanding customs duty of Rs. 16.97 crores (rounded off) with matching amount of penalty. Independent penalties on Directors were also imposed. Against the order of adjudicating authority, the petitioners preferred appeal before the Tribunal. Along with the appeal, the petitioners prayed for waiving of pre-deposit. Tribunal passed an order on 14-1-2004 and granted stay and waived rest of the amount by way of pre-deposit on condition that the petitioners deposit sum of Rs. 3 crores. The Directors were however, required to deposit Rs. 20 lakh and Rs. 10 lakh respectively. 4. The petitioners challenged the said order of the Tribunal by filing Special Civil Application No. 5523/2004 before this Court. In the said petition on behalf of the petitioners, it was suggested that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of undue hardship on the part of the appellants upon considering existence of a prima facie case. Merit of the case ordinarily should not otherwise be gone into unless the question on the face of it appears to be concluded. 11. The Tribunal while imposing the condition of pre-deposit was required to apply its mind in regard to the existence or otherwise of the conditions laid down in the statute. 12. In Vijay Prakash D. Mehta (supra), applicability or interpretation of Section 129E of the Act came up for consideration before this Court wherein it was held : 9. Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasijudicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. 11. These observations cannot be applied to the facts of this case. Here we are concerned with the right given under Section 129A of the Act as controlled by Section 129E of the Act, and that right is with a condition and thus a conditional right. The petitioner in this case has no absolute right of stay. He could obtain stay of realisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted where the possession of the secured assets has already been taken over or the management of the secured assets of the borrower including the right to transfer the same, in that event it would not at all be necessary to burden the borrower doubly with deposit of 75% of the demand amount. In a situation where the possession of the secured assets have already been taken over or its management, it is highly unreasonable further to ask for 75% of the amount claimed before entertaining the grievance of the borrower. 57. Secondly, it is submitted that, it would not be possible for a borrower to raise funds to make deposit of the huge amount of 75% of the demand, once he is deprived of the possession/management of the property namely, the secured assets. Therefore, the condition of deposit is a condition of impossibility which renders the remedy made available before the DRT as nugatop and illusory. The learned Attorney General refutes the aforesaid contention. It is further submitted that such a condition of pre-deposit has been held to be valid by this Court earlier and a reference has been made to SCC at p. 202 in Anant Mills Co. Ltd. v. State of Gujarat to submit that such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h this order of the Supreme Court petitioner approached the Tribunal, Tribunal once again rejected the request for waiver of pre-deposit by impugned order dated 28-4-2011. Tribunal was influenced by the fact that before the Apex Court, it was conveyed that goods are in custody of the Revenue which was not true. Tribunal therefore, held a belief that the petitioners had made a misleading statement before the Apex Court. Tribunal therefore, dismissed the prayer for waiver of pre-deposit making following observations : 9. On the above basis, proceedings were initiated against them which resulted in passing of the impugned order by the Commissioner. 10. On going through the order of the Commissioner, we find that he has relied upon the fact of shortage of imported fabrics at the time of visit of the officers, report from Mumbai Customs indicating that the garments claimed to have been exported by unit in fulfilment of its export obligations, could not have manufactured out of duty free raw material imported by them or indigenous fabrics without any duty payment procured from the 100% EOU; statements of the Directors were recorded at various points of time were inculpatory; that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration received by the appellant from their illegal activities. 14. It may be observed here that the duty amount is to the extent of Rs. 17 crores. Revenue s interest is also required to be protected. 15. Having held against them from the prima facie merits of the case, we direct the appellant M/s. Bhavya Apparels Pvt. Ltd to deposit an amount of Rs. 1.70 crores (Rupees One Crore. Seventy Lakhs only) which is 10% of the duty confirmed against them, subject to which the pre-deposit of balance amount of duty and penalty imposed upon the appellant shall stand waived and its recovery stayed during the pendency of the appeal. The said pre-deposit is required to be made within twelve weeks from the date of passing of the order. 9. Before us, counsel for the petitioners submitted that conveying to the Apex Court that goods are still in custody of the Revenue was a pure error. In fact both the sides had made such a suggestion. There was no intention on part of the petitioners to mislead the Court. In any case, Revenue has not approached the Apex Court for any modification of this order. Counsel further submitted that Tribunal erred in clearly ignoring the petitioners financ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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