TMI Blog2014 (12) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue. Order of tribunal directing the assessee to deposit a sum of ₹ 2,50,00,000/- (Rupees two crores and fifty lakhs only) modified - The appellant directed to deposit a sum of ₹ 1,75,00,000/- (Rupees one crore seventy five lakhs only) - Appeal restored conditionally. - C.M.A. Nos. 2256 & 384 of 2014 - - - Dated:- 6-11-2014 - R. Sudhakar And R. Karuppiah,JJ. For the Appellant : Mr. N. Viswanathan For the Respondents : Mr. T. Chandrasekaran for R2 in C.M.A.No.2256 of 2014 Mr. K. Mohanamurali for R2 in C.M.A.No.384 of 2014 R1-Tribunal JUDGMENT (Judgment of the Court was delivered by R. Sudhakar, J.) The appellant filed three bills of entries for import of goods falling under Chapter 8539 of the heading Electric filament or discharge lamps, including sealed beam lamp units and ultra-violet or infra-red lamps; arc lamps and its sub headings before the Customs authority and the nature of goods claimed under the respective sub-headings pertainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave increased quite significantly both in absolute terms and relative to consumption in India; (b) the sale of domestic industry has declined significantly; (c) the domestic sale prices are suffering from both price suppression and price depression due to dumped imported from People's Republic of China and Hong Kong; (d) the production has remained more or less static during period of investigation; (e) closing stocks have gone up by around 145% during period of investigation over previous year; (f) the capacity utilisation during the period of investigation was as low as 20% (after taking into account the increased capacity); (g) the domestic industry has suffered losses during the period of investigation, and had considered it necessary to impose anti-dumping duty, provisionally, pending final determination, on all imports of CFL, originating in or exported from People's Republic of China and Hong Kong; AND WHEREAS on the basis of the aforesaid findings of the Designated Authority, the Central Government had imposed provisionally an anti-dumping duty vide Notification No.128/2001-Customs dated the 21st December, 2001, published in Part II, Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable in Indian currency; Provided that in the case of export of CFL with choke, originating in, or exported from Hong Kong, the anti-dumping duty imposed under this notification shall be effective from the date of issue of this notification in the Official Gazette. ........'' 3. Based on the aforesaid Notification, the department proceeded to demand anti-dumping duty in respect of the goods imported and provisionally cleared by the appellant, in the following manner:- WORKING SHEET Sl.No. B/E dated Rate per unit (USD) (A) Total quantity under import (B) Antidumping chargeable under C.NotificationNo.138/02 (C) = (A) (B) 1 USD in IR (D) Antidumping chargeable under C.Notification.138/02 (E) = (C) (D) (in NR) Assessable Value (F) Basic Customs Duty (G) Landed value (H) = (F) (G) Antidumping duty (E)-(H) 1 434121 dt. 21.10.02 3.125 93200 291250.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the provisional assessment of the goods. 4. After hearing both sides, we find force in the submissions of the Ld.AR. It is seen that in the case of Picasso Overseas (supra), the goods mentioned as CFL 2U-7W, PL Tube 9W 11W, CFL2U-7W, which are similar in the present case. We also find that the applicant has furnished the bond for a provisional assessment for release of the goods in respect of demand of anti-dumping duty vide Notification No.128/2001 dt.21.12.01, and on that basis proper officer has allowed to clear the goods. At any event, we find this issue has already been discussed by the Tribunal in the earlier stay order in detail, which was modified by the Hon'ble Madras High Court by directing the applicant to deposit 30% of the demand of duty. We do not find any force in the submission of the Ld.Advocate in respect of financial hardship as it is without any supporting material. Accordingly, we direct the applicant to deposit a sum of ₹ 2,50,000/- (Rupees two crores and fifty lakhs only) within 8 weeks. Upon deposit of the said amount, pre-deposit of balance dues would be waived till the disposal of appeal and recovery stayed thereof. Compliance to be report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly, the period of compliance of stay order is extended for a further period of 6 weeks. Compliance is to be reported on 23.1.2014. MISC application is disposed of in the above terms.'' Aggrieved by the miscellaneous order, the appellant has preferred the C.M.A.No.384 of 2014. In the meanwhile, since the appellant failed to comply with the stay order, the main appeal itself was dismissed by the Tribunal vide the order dated 21.3.2014. Aggrieved by the final order, the appellant has preferred the C.M.A.No.2256 of 2014. 5. Mr.N.Viswanathan, learned counsel for the appellant was at pains to argue that when the imported goods are falling under the sub-headings 853910, 853921, 853931, 853939 and 853990 in respect of the three bills of entries presented by the appellant, the anti-dumping duty is proposed to be levied in respect of all the goods, despite the fact that the Notification No.138/2002 is specific only with regard to the goods falling under the sub-heading 853931. 6. We have also heard the respective learned counsel for the second respondent in both the appeals. 7. Prima facie, we have considered the plea of the learned counsel for the appellant and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 and CCE v. Dunlop India Ltd., (1985) 1 SCC 260 cases without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows: 35-F. Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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