Jayant Agro Organics Ltd. Vs. Union of India (Uoi) - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the..........duty.6. the petitioner pleaded before the tribunal that it is not in financial position to deposit .the duty as a condition precedent for appeal because of the heavy losses incurred by the petitioner for the quarterly/half year ended 30th september 2003, the department did not dispute the financial hardship pleaded by the petitioner. on merits also, it cannot be said that the plea set up by the petitioner is frivolous and that there is no substance whatsoever in the contention of the petitioner that imported items are in the nature of consumables and are not raw materials and, therefore, their use would not debar the petitioner from claiming the benefit of concessional rate of duty under the circular dated 5th may 1998 and the notification no. 8/97.7. taking overall consideration.....

Judgment:
ORDER

1. Rule. Returnable forthwith.

2. Mr. P. S. Jetley, Advocate waives service for the respondents.

3. By consent, rule is heard finally at this stage.

4. The order passed by the Commissioner of Central Excise, Vadodara confirming duty demand of Rs. 2,30,95,031 /- on one of the final products namely glycerine and other by-products arising in the course of manufacture of refined castor oil, hydrogenated castor oil, 12-Hydroxy stearic acid and ricinoleic acid is under challenge in appeal before the Customs, Excise and Service Tax Appellate Tribunal at the instance of the petitioner. The Tribunal has asked the petitioner to pre-deposit the sum of Rs. 50 lacks towards duty within a period of twelve weeks from the date of the order. It is this order which is under challenge in this writ petition.

5. The submission of the learned counsel for the petitioner is that three fourth of the duty demand is barred by limitation and prima facie has been held to be so and, therefore, the direction by the Tribunal to the petitioner to pre-deposit a sum of Rs. 50 lacs virtually amounts to 100% deposit of the remaining duty.

6. The petitioner pleaded before the Tribunal that it is not in financial position to deposit .the duty as a condition precedent for appeal because of the heavy losses incurred by the petitioner for the quarterly/half year ended 30th September 2003, The department did not dispute the financial hardship pleaded by the petitioner. On merits also, it cannot be said that the plea set up by the petitioner is frivolous and that there is no substance whatsoever in the contention of the petitioner that imported items are in the nature of consumables and are not raw materials and, therefore, their use would not debar the petitioner from claiming the benefit of concessional rate of duty under the Circular dated 5th May 1998 and the Notification No. 8/97.

7. Taking overall consideration of the facts and circumstances of the case, we are satisfied that the impugned order dated 17th December 2003 calls for modification.

8. We, accordingly, dispose of the writ petition by following Order:

(i) The petitioner shall pre-deposit a sum of Rs. 25 lacs towards duty within a period of four weeks from today.

(ii) The petitioner shall also furnish a security/bank guarantee in the sum of Rs. 25 lacs to the satisfaction of the Commissioner of Central Excise/ Vadodara within a period of four weeks from today.

9. No costs.