Nexus Transcore Industries Rep. by Its Managing Partner and Nexus Translam Industries Rep. by Its Proprietor Vs. Union of India (Uoi), Rep. by Its Secretary, Ministry of Finance, Department of Revenue and ors. - Court Judgment

Excerpt:
customs - differential duty - recovery of - petitioners filed some bills of entry for clearance of imported goods - said bills of entry were assessed provisionally on basis of contemporaneous import price prevailing during material time and clearance was allowed on execution of necessary provisional duty bonds along with bank guarantee as security towards differential duty between duty arising out of declared value and provisionally determined value - being aggrieved, petitioner filed appeals before commissioner along with applications for stay of recovery of amounts - however, without passing any interim order or even disposing main appeals, differential amounts had been tried to be recovered from petitioner - hence, instant writ petition - held, commissioner of central excise (appeals) was directed to dispose of stay applications or main appeals at an early date - till such orders were passed either on stay applications or on main appeals, whichever was earlier, bank guarantees furnished by petitioners should not be invoked - petition, accordingly, disposed of - t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. -- t.n. estates (abolition & conversion into ryotwari) act, 1948. sections 5(2) & 67; suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. orderk. raviraja pandian, j.1. by consent, the writ petitions are taken up for final disposal.2. the case of the petitioners is that they filed 13 and 10 bills of entry respectively for clearance of imported second/defective crgo electrical steel strip cutting in irregular shapes and sizes through pondicherry inland container depot and declared the value of the goods at usd 350 per mt. the said bills of entry were assessed provisionally determining the value at usd 485 per mt on the basis of the contemporaneous import price prevailing during the material period and clearance was allowed on execution of necessary provisional duty bonds along with bank guarantees as securities towards the differential duty between the duty arising out of the declared value and provisionally determined value as agreed by both the petitioners and the department. however, the orders in original were passed on 28.9.2006 by the third respondent non suiting the petitioners to the value reported by them. the value has been enhanced by usd 485 per mt as final assessable value. 3. aggrieved against those orders, the petitioner have filed two appeals before the commissioner of central excise (appeals), chennai. along with the appeals, the petitioners have also filed applications for stay of recovery of the amounts as per the impugned orders. the reason for invoking the jurisdiction of this court is that without passing any interim order or even disposing the main appeals, the differential amounts have been tried to be recovered from the petitioners. 4. learned counsel for the petitioners submits that in respect of an identical import, earlier, the department has taken a view as taken in this case, which was carried on appeal by one of the petitioners to the commissioner of customs (appeals) and further appeal to the customs, excise and service tax appellate tribunal, south zonal branch, chennai. ultimately, the tribunal accepted the value as declared by one of the petitioners. hence, in this case also, the petitioners are having 100% case in their favour. that being so, recovery of differential amounts by the respondents pending consideration of the appeals cannot be sustained. 5. i have heard the learned counsel for the petitioners and the learned additional solicitor general. 6. admittedly, the appeals against the orders in original are pending before the commissioner of central excise (appeals), chennai along with applications to stay the collection of differential amounts as submitted by the petitioners. it is the grievance of the petitioners now that without passing any orders either in the main appeals or in the stay applications, the bank guarantees given by the petitioners for the differential value, when the goods were cleared provisionally, are sought to be invoked, which is impermissible in law. 7. having regard to the said facts, i am of the view that instead of admitting and keeping the writ petitions pending for years together, the same can be disposed of at the admission stage itself by directing the commissioner of central excise (appeals), chennai to dispose of the stay applications one way or the other on merits or pass orders on the main appeals themselves.8. accordingly, the commissioner of central excise (appeals), chennai is directed to dispose of the stay applications or the main appeals at an early date. till such orders are passed either on the stay applications or on the main appeals, whichever is earlier, the bank guarantees furnished by the petitioners shall not be invoked. but, at the same time, the petitioners are directed to keep the bank guarantees alive till orders are passed by the commissioner of central excise (appeals), chennai. 9. the writ petitions are accordingly disposed of. no costs consequently, the above mps are dismissed.

Judgment:
ORDER

K. Raviraja Pandian, J.

1. By consent, the writ petitions are taken up for final disposal.

2. The case of the petitioners is that they filed 13 and 10 bills of entry respectively for clearance of imported second/defective CRGO electrical steel strip cutting in irregular shapes and sizes through Pondicherry Inland Container Depot and declared the value of the goods at USD 350 per MT. The said bills of entry were assessed provisionally determining the value at USD 485 per MT on the basis of the contemporaneous import price prevailing during the material period and clearance was allowed on execution of necessary provisional duty bonds along with bank guarantees as securities towards the differential duty between the duty arising out of the declared value and provisionally determined value as agreed by both the petitioners and the Department. However, the orders in original were passed on 28.9.2006 by the third respondent non suiting the petitioners to the value reported by them. The value has been enhanced by USD 485 per MT as final assessable value.

3. Aggrieved against those orders, the petitioner have filed two appeals before the Commissioner of Central Excise (Appeals), Chennai. Along with the appeals, the petitioners have also filed applications for stay of recovery of the amounts as per the impugned orders. The reason for invoking the jurisdiction of this Court is that without passing any interim order or even disposing the main appeals, the differential amounts have been tried to be recovered from the petitioners.

4. Learned Counsel for the petitioners submits that in respect of an identical import, earlier, the Department has taken a view as taken in this case, which was carried on appeal by one of the petitioners to the Commissioner of Customs (Appeals) and further appeal to the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Branch, Chennai. Ultimately, the Tribunal accepted the value as declared by one of the petitioners. Hence, in this case also, the petitioners are having 100% case in their favour. That being so, recovery of differential amounts by the respondents pending consideration of the appeals cannot be sustained.

5. I have heard the learned Counsel for the petitioners and the learned Additional Solicitor General.

6. Admittedly, the appeals against the orders in original are pending before the Commissioner of Central Excise (Appeals), Chennai along with applications to stay the collection of differential amounts as submitted by the petitioners. It is the grievance of the petitioners now that without passing any orders either in the main appeals or in the stay applications, the bank guarantees given by the petitioners for the differential value, when the goods were cleared provisionally, are sought to be invoked, which is impermissible in law.

7. Having regard to the said facts, I am of the view that instead of admitting and keeping the writ petitions pending for years together, the same can be disposed of at the admission stage itself by directing the Commissioner of Central Excise (Appeals), Chennai to dispose of the stay applications one way or the other on merits or pass orders on the main appeals themselves.

8. Accordingly, the Commissioner of Central Excise (Appeals), Chennai is directed to dispose of the stay applications or the main appeals at an early date. Till such orders are passed either on the stay applications or on the main appeals, whichever is earlier, the bank guarantees furnished by the petitioners shall not be invoked. But, at the same time, the petitioners are directed to keep the bank guarantees alive till orders are passed by the Commissioner of Central Excise (Appeals), Chennai.

9. The writ petitions are accordingly disposed of. No costs Consequently, the above MPS are dismissed.