IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE MRS. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 3 6 1 7 of 2010 Between: M/s. Handum Industries Limited, Sy.No. 296/7/7, IDA, Bollaram, Jinnaram Mandal, Medak district, Represented by its Managing Director, Sri P.V.Ramana Reddy ..... PETITIONER V/s. The Commissioner of Central Excise (Adjudication) Bangalore & Anr. .....RESPONDENTS The Division Bench made the following Order: (Order follows 2nd page) THE HON'BLE MRS. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 3 6 1 7 of 2010 ORAL ORDER : (Per THE HON’BLE MRS. JUSTICE T.MEENA KUMARI) Seeking a writ of mandamus, declaring the order passed by the second respondent dated 23-12-2009 in stay application Nos. C/Stay/81-85/09 and 91-93/09 as illegal, void and inoperative and to set aside the same and to direct the second respondent (CESTAT) to admit and dispose off the appeal without insisting on pre-deposit of customs duty and penalties imposed by the first respondent by proceedings dated 16-12-2008, the petitioner filed this writ petition. 2. The petitioner company is an 100% Export Oriented Unit engaged in the business of manufacture of re-rolled products of Iron and Steel. It is stated that the petitioner company imported non-alloy steel blooms, billets etc., without payment of customs duty by availing benefits under the Customs Notification No.53/1997 dated 03-6-1997 during the period from 2000-01 to 2003-04. It is stated that on 09-4- 2003 officials of Directorate of Revenue Intelligence Regional Unit, Hyderabad carried out search and thereafter on 19-11-2003 a show cause notice was issued to the petitioner-company alleging that the petitioner company had diverted imported raw material to the local market without paying customs duty and indulged in practices leading to revenue loss. On 28-2-2006 without granting an opportunity to participate in the proceedings, the first respondent passed the impugned order imposing the duty and penalties. Aggrieved thereby, the petitioner company filed an appeal before the second respondent contending that the order was passed without affording an opportunity to the petitioner company. Thereupon the second respondent by order dated 23-4-2007 in Appeal Nos. C/ST/112-119/06 allowed the appeal setting aside the order dated 28-2-2006 passed by the first respondent and directed the first respondent to examine the evidence including the permission granted by the Development Commissioner and pass appropriate orders thereon by granting opportunity to the petitioner company. Consequent upon the directions of the second respondent, dated 23- 4-2007, the first respondent taken up the proceedings but denied the petitioner to cross-examine the material witness and passed the order dated 16-12-2009 confirming the same duty, penalty and interest as were imposed in the earlier proceedings. Aggrieved thereby, the petitioner company filed an appeal before the second respondent seeking to dispense with pre-deposit of duty but the matter was adjourned quite some time and thereafter in the absence of the petitioner company, the impugned order dated 23-12-2009 was passed directing the petitioner company to pay full duty imposed and 10% penalty. Thereafter, the petitioner company filed application seeking to recall the order dated 23-12-2009 but the second respondent dismissed the same relying on a decision of the Karnataka High Court in CCE V/s. Mc.Dowel & Company reported in 2005 186 ELT-145. Aggrieved thereby, the petitioner company filed the present writ petition. 3. It is submitted by the learned counsel for the petitioner that though several contentions were raised before the second respondent, the second respondent has refused to recall the impugned order. It is submitted that pursuant to the rejection of recall order by the second respondent, the first respondent is contemplating coercive steps for recovery of the disputed tax. 4. Heard the learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes. 5. In the facts and circumstances of the case, we are of the opinion that the writ petition can be disposed of at the stage of admission directing the petitioner to deposit Rs.01,05,00,000=00 {Rs. One Crore and Five Lakhs only), as per the impugned order in addition to the amount already paid, preferably within a period of four weeks from today i.e., 05-03-2010 and the respondents are directed not to take coercive step for recovery of the balance disputed tax, pending finalisation of the appeal by the Appellate Tribunal. It is made clear that the amount paid, if any, shall be given credit to the above stipulated sum. 6. With the above directions, the writ petition is disposed of. No order as to costs. _____________________ Justice T.Meena Kumari ___________________________________ Justice Nooty Ramamohana Rao March 5, 2010. I s L NB: Furnish CC. in two days. B/o. I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE NOORTY RAMAMOHANA RAO WRIT PETITION No. 3 6 1 7 OF 2010 Judgment of the Division Bench delivered by the Hon'ble Smt. Justice T. Meenakumari) Circulation Entry No. 9 6 Date: 05-03-2010 COMPUTER No. 43 Court Master: I s L