Commissioner of Customs (Exports) v. M/s. Choice International

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 07.02.2008C O R A M :The Honourable Mr.Justice K.RAVIRAJA PANDIANandThe Honourable Mrs. Justice CHITRA VENKATARAMANC.M.A. No.341 of 2008 Commissioner of Customs (Exports)Custom HouseChennai – 600 001. .. Appellant / RespondentVsM/s.Choice International1617 A/1,. 1st Floor, UldanpurNaveern ShahdaraDelhi – 110 032. .. Respondent / AppellantCivil Miscellaneous Appeal under section 130 of customs Act,1962 filed against the final order No.789/2007 dated 27/6.2007 on the file of the Customs, Excise and Service Tax AppellateTribunal, Chennai. For Appellant : Mr.S.UdayakumarJ U D G M E N T (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN,J)This appeal is filed by the Department against the order of the Customs, Excise and Service Tax Appellate Tribunal, Chennaimade in Final Order No.789/2007 dated 27.6.2007 along with StayOrder No.645/2007.

The appeal before the Customs, Excise and Service TaxAppellate Tribunal came to be filed against the demand of anti-dumping duty on Compact Fluorescent Lamps (CFL, for short)imported by the respondent herein and cleared under flour Bills of Entry during November-December 2002. The CFLs are of Chineseorigin and are governed by two notifications viz., NotificationNo.128/2001 dated 21.12.2001 (Provisional) and NotificationNO.138/2002 dated 10.12.2002 (final). The goods imported by the respondent were provisionally cleared under Section 18(1) of the Act against the bonds executed by the importer for a period of https://hcservices.ecourts.gov.in/hcservices/ six months. The bonds were not renewed nor were any such renewal requisitioned by the Department. Further, no show cause notice was issued by the Department. The Assistant Commissioner of Customs, however, issued a letter to the importer proposing finalisation of provisional assessments under Section 18(2) of the Customs Act and ultimately passed an order finalising assessment and called upon the importer to pay anti-dumping duty on the goods imported by them.

Mr.Udayakumar, learned counsel appearing for the appellant has very strenuously contended that in this case the revenue involved is very huge. Each case has to be adjudicated depending upon the facts of the particular case. Though power has been vested with the authorities for granting waiver of the pre-deposit. That power has been exercised judiciously. In this case the Tribunal has passed the order of waiving the pre-deposit for no reason.

We heard the argument of the learned counsel for the appellant and perused the materials on record.

The Tribunal has given its reasoning as follows: "... 5. After giving careful consideration to the submissions, we note that the decision in SilcoAglencies (2006 (198) ELT 406) was rendered by this Bench in Oct"2—5 when the decision of the BangaloreBench in the cases of Commissioner of Customs, CochinVs. Raghav Enterprises 2005(189) ELT 461 and https://hcservices.ecourts.gov.in/hcservices/ Commissioner of customs, Cochin Vs. Royal Impex, 2006(204) ELT 567 was not available. In our recent order(Final Order No.14-20/07 dt.4.1.07 ibid), we considered the decision of the Delhi and Bangalore Benches and tooka definite stand with regard to the finalization of provisional assessments done by the Asst. Commissionerunder Section 18(2) of the Customs Act de hors the fact that the PD bond executed by the assessee at the time of provisional release of the goods had expired long back. We also took into account the fact that there is no charging provision for provisional anti-dumping duty and that a Notification determining the final anti-dumpingduty with retrospective effect is repugnant to Rules 13& 20 of the Anti-dumping Rules. This view of the Tribunal, taken on a legal issue, vide our Final OrderNo.14-20/2007 dt.4.1.07 ibid, is yet to be challenged by the Revenue. In the circumstances, the respondent cannot be heard to say that the view taken by this Bench in final order dated 4.1.07 is legally incorrect. On the question whether the decision of the Delhi Bench must prevail over the decision of the Bangalore Bench, wereserved our view and ld. SDR's submission on the point will be considered at final hearing stage. "

Thus, the Tribunal has found a strong prima facie case in favour of the importer against the levy of anti-dumping duty retrospectively. As a matter of fact the Tribunal relied on its earlier Final Order dated 4.1.2007 on the very same issue which is the requirement of judicial consistency. It is not established before us that the order of the Tribunal dated 4.1.2007 has been modified or altered by any Court. Even assuming that the Department has filed an appeal against the said order that would not by itself is a reason for not following the order of the Tribunal (vide Sri Rajendra Mills Limited Vs. Joint Commercial TaxOfficer, Salem, reported in (1971) 28 STC 483). Having regard to the peculiar facts and circumstances of the case and the power of the Tribunal under Section 129B of the Act, we are not able to find anything irregular in the impugned order of the Tribunal.

The impugned order has been passed by the Tribunal on27.6.2007. If the appellants are very particular about the collection of the revenue, they would have insisted the Commissioner Appeals to dispose of the appeal itself on merits by this time. We can also take judicial notice that in several of such cases the main appeal itself was disposed of by the statutory authorities at the time of hearing waiver application. Hence, the argument projected by the learned counsel that huge revenue is involved cannot be ipso facto a reason for interfering with the order of the Tribunal. https://hcservices.ecourts.gov.in/hcservices/