TMI Blog2004 (3) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... s power while withdrawing exemption granted earlier from payment of duty for import of the subject is not in public interest and rather whimsical and arbitrary. Furthermore, the petitioner is treated with hostile discrimination, while a section of printing press established has been without any intelligible differentia. 2.When the writ application was moved I did not pass any anticipatory interim order rather I gave direction for filing affidavits to sort out this matter finally. The time limit for filing affidavit expired but respondents did not file any affidavit-in-opposition, they are still very keen to file it to contest the writ petition. So, the learned Additional Solicitor General prays for extension, granting of extension at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner has been incurring detention charges every day. To avoid these difficulties, he contends that pending hearing of this matter finally goods should be released. He further contends had the affidavit-in-opposition been filed by this time, then today itself the writ petition would have been decided finally as the same is appearing in the list for hearing. While placing his prima facie case he has drawn my attention to various paragraphs of the writ petition and submits that machine in question is not dissimilar to that of the machine as notified in the November Notification. Functional ability and utility are also the same with little variation which are insignificant in nature and this variation does not put the machine in different ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier concession was withdrawn. In support of his contention he has relied on the decision of the Supreme Court reported in [1991 (55) E.L.T. 3 (S.C.) = 1991 Supp. (2) SCC 86], [1999 (112) E.L.T. 3 (S.C.) = (1999) 6 SCC 117] and [1994 (72) E.L.T. 805 (S.C.) = (1994) 5 SCC 198]. Therefore, under no circumstances earlier Notification of May 2003 will be applicable in this case. 9.Apparently the two machines are different and he contends the petitioner has not been able to produce any material to establish the similarity of the two machines. Apparent reading of the two machines will suggest that these machines are dissimilar and they are separate in class and character. Functional ability and the pattern must be different and one may be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the notification impugned and functional pattern and ability are also same, only there is a little variation. Unless these facts are controverted by filing an affidavit by the Revenue showing that the machine in question as mentioned in the impugned notification is dissimilar and different in character, perhaps it is not possible for the court to come to any conclusion on the factual aspect. I thought the affidavit would be forthcoming today but it is not so. So, I will certainly grant extension to file the affidavit. 12.Before that, question of release of the goods is to be decided. While considering this aspect the Court has to see the balance of convenience and inconvenience. Mr. Mitra contends that the machine will be in possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner shall pay the admitted 5% of the duty so to be levied and so far the differential duty is concerned, the petitioner shall furnish a bank guarantee in any Nationalized Bank with the Commissioner of Customs (Port) and such bank guarantee shall be kept renewed, if necessary, from time to time. The petitioner shall of course pay all other dues, if any, to any other person. 14.Upon the aforesaid things being done the goods shall be released within 48 hours from the time of compliance. 15.Time to file affidavit-in-opposition is extended by one week from date. Reply shall be filed within one week thereafter. Matter shall appear three weeks hence. Therefore, the writ petition stands adjourned for three weeks. The matter shall be heard as u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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