Becton Dikinsion India Private Limited, Rewari v. Customs, Excise & Service Tax Appellate Tribunal & Anr.

CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE. HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.

Whether Reporters of local papers may be allowed to see the judgment? Whether to be referred to the reporters or not? Whether the judgment should be reported in the Digest? Present: Mr. Ashok Aggarwal, Senior Advocate with Mr. Jagmohan Bansal, Mr.Ajay Aggarwal and Mr. Nikhil Aggarwal, Advocates for the petitioner (In C.W.P. No. 9793 of 2009) Civil Writ Petition No. 9793 of 2009 2 Mr. Rajive Atma Ram Senior Advocate with Mr. Jagmohan Bansal, Mr.Ajay Aggarwal and Mr. Nikhil Aggarwal, Advocates for the petitioner (In C.W.P. No. 10198 of 2009). Mr. H.P.S. Ghuman, Advocate for the respondents. T.S. Thakur, C.J. (Oral) These two writ petitions arise out of two different orders passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, whereby the prayer made by the petitioner-company was allowed to the extent of waiving the penalty but disallowed to the extent of waiver of excise duty. In Civil Writ Petition No. 9793 of 2009, the petitioner-company has suffered an order at the hands of the Commissioner, Central Excise, Delhi, determining a sum of Rs.1,80,07,091/- towards central excise duty and education cess. The Commissioner has also levied penalty of Rs.30,00,000/- on the petitioner in the said case, aggrieved whereby the company has preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, and prayed for waiver of pre-deposit under Section 35F of the Central Excise Act, 1944. By its order dated 12.5.2009, the Tribunal has waived the pre-deposit of interest and penalty levied upon the petitioner but declined the prayer for waiver in so far as deposit of the excise duty is concerned. In Civil Writ Petition No. 10198 of 2009, the petitioner- company has suffered a similar order passed by the Commissioner, Central Excise , Delhi, determining a sum of Rs.2,81,41,807/- towards Civil Writ Petition No. 9793 of 2009 3 excise duty and education cess and a penalty of equivalent amount payable with interest under Section 11AB of the Central Excise Act,

1944. The company, aggrieved by the said order, has preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, who has, by an order dated 12.5.2009, waived the pre- deposit of the amount of penalty but directed deposit of 50% amount of duty as a condition precedent for hearing of appeal on merits. We have heard learned counsel for the parties at considerable length and perused the record. We do not consider it necessary to enumerate the respective submissions that were urged before us at the hearing nor do we propose to deal with any one of those submissions lest we, in the process, cause any prejudice to either party or hearing of the matter before the Tribunal. That is so additionally because a detailed examination of contentions urged on either side has been obviated by the parties agreeing to an arrangement that will subserve the interest of both the parties and expedite the disposal of these matters as also the matters pending before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi.

The arrangement precisely speaking is that the petitioner- company shall in Civil Writ Petition No. 9793 of 2009 pre-deposit 50% of the duty amount determined against it with the Collectorate concerned within a period of six weeks from today, and secure the balance of 50% of the duty amount by furnishing a bank guarantee in favour of and to the satisfaction of the Commissioner of Customs and Central Excise, Gurgaon. In Civil Writ Petition No. 10198 of 2009, the petitioner- Civil Writ Petition No. 9793 of 2009 4 company shall pre-deposit a sum of Rs.35,00,000/- with the Collectorate concerned within a period of six weeks from today and furnish a bank guarantee for a further amount of Rs.35,00,000/- in favour of and to the satisfaction of the Commissioner of Customs and Central Excise, Gurgaon. Subject to the deposit of the amount of duty and the furnishing of bank guarantee, as indicated above, the recovery of the balance due under the orders passed by the Commissioner and impugned in the appeals pending before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, shall remain stayed pending final disposal of the same.

Since the issues that have been raised by the petitioner- company in Civil Writ Petition No. 9793 of 2009 also arise for determination in some other matters pending before the said Tribunal, we give liberty to the parties to approach the Tribunal for an expeditious hearing of the said matters. We hope and trust that as and when such a request is made by the parties or by any one of them, the Tribunal will consider the same sympathetically and do the needful to avoid any further procrastination and consequent accumulation of public dues allegedly recoverable from the petitioner. We make it clear that this order shall not be treated to be an expression of any opinion regarding the liability of the petitioner or any matter otherwise raised before us on behalf of the petitioner or the respondents. The Tribunal shall be free to deal with the issues urged before it uninfluenced by the interim order that we have made. Civil Writ Petition No. 9793 of 2009 5 The writ petitions are, accordingly, disposed of in modification of the orders impugned in the same. The parties are left to bear their own costs. (T.S.Thakur) Chief Justice (Kanwaljit Singh Ahluwalia) Judge August 18, 2009 “DK”