1. M/s. Modi Champion Ltd., Matsya Industrial Area, Delhi Road, Alwar (Rajasthan) has filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals), Bombay. The said appeal was presented in the Registry on 4th July, 1994. A stay application duly supported with an affidavit was also presented in the Registry on the said date. Shri. V. Lakshmikumaran, learned Advocate pleaded that the disputed amount of duty in the present matter is Rs. 42,62,175/- and the appellant had filed a Writ Petition in the Bombay High Court vide order dated 19th July, 1993. Shri Lakshmikumaran pleaded that thereafter the Honourable High Court further passed an order and the appellant was directed to furnish bank guarantee for the disputed differential amount of duty for future clearance. He argued that in view of the direction of the Honourable High Court, the appellants had furnished the bank guarantee totalling Rs. 42,62,175/- out of the four bank guarantees have been encashed for the total amount of Rs. 36,22,695 /- without waiting for the order of the Tribunal, and much in defiance against the order passed by the Honourable Bombay High Court, Shri Lakshmikumaran pleaded that since the major portion of the amount to the tune of Rs. 36,22,695/- has already been paid and as such the balance duty may be dispensed with.
2. Shri B.K. Singh, learned Senior Departmental Representative who is present on behalf of the respondent pleaded that there are no findings on merits of the order passed by the Honourable Bombay High Court. The only direction of the Honourable High Court is that the bank guarantee is kept alive for six weeks after disposing of the appeal by Collector (Appeals) and as such the Revenue authorities were well within their authority and jurisdiction to encash the bank guarantees. However, since the appellants have paid the major portion of the amount, he does not object to the dispensing with the pre-deposit of the balance amount of duty at Rs. 42,62,175/-- Rs. 36,22,6957- = Rs. 6,39,480/- and also for non-encashment of the bank guarantee for the balance amount.
3. We have heard both the sides and have gone through the facts and circumstances of the case. The total amount was Rs. 42,62,175/- out of the bank guarantee to the tune of Rs. 36,22,695/- has already been encashed by the department. The Honourable Bombay High Court order dated 19th July, 1993 in Writ Petition No. 1366 of 1993 is reproduced below : "The petitioner to file an appeal against the impugned order dated 28-6-1993 to Collector of Customs (Appeals), Bombay within 4 weeks.
In the meantime, the Respondents to permit the petitioners to clear consignment covered'by Bill of Entry No. 5186, dated 16-6-1993 on the petitioner's making payment of admitted basic duty and full countervailing duty and furnishing bank guarantee of a Nationalised Bank for the differential disputed amount of basic customs duty. The petitioners to keep the bank guarantee alive till the appeal is disposed of and 6 weeks thereafter. The petition disposed of accordingly with no costs." A perusal of the same shows that the appellant was to furnish the bank guarantee of any nationalised bank for the differential disputed amount of basic customs duty and also was to keep the bank guarantee alive till the appeal was disposed of and 6 weeks thereafter. The order in appeal is dated 6-6-1994 and six weeks expired on 18th July, 1994. This shows that the bank guarantee has been encashed by the Revenue authorities much before the expiry of the six weeks. Keeping in view the totality of the facts and circumstances of the case, we are of the view that if the appellants are desired to further deposit the remaining amount of Rs. 6,39,480/- it will amount to undue hardship.
Accordingly, we dispense with the pre-deposit of the same. We further direct that during the pendency of the appeal, the Revenue authorities shall not pursue recovery proceedings or for the encashment of the bank guarantee which has been executed by the appellant in favour of the respondent. In the result, the Miscellaneous Application is allowed partly.
4. We are about to part with the matter when Shri V. Lakshmikumaran, learned Advocate pleaded that there is a recurring effect and as such out of turn hearing may be granted as it will result in the multiplicity of the proceedings before the various authorities. Shri B.K. Singh, learned SDR does object to the grant of out of turn hearing.
5. After hearing both sides, in the interest of justice, we order out of turn hearing. The matter will be heard on merits on sixth January, 1995.