IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 4930 of 2009(J) --------------------------------- PETITIONER: -------------------- M/S. KIMS HEALTH CARE MANAGEMENT LTD.( FORMERLY KNOWN AS M/S. THE GREAT INDIA HEALTH CARE MANAGEMENT PVT.), P.B. NO.1, ANAYARA, THIRUVANANTHPURAM – 695 029, REPRESENTED BY ITS CHIEF FINANCIAL OFFICER, PRADEEP KUMAR SHENOY S, AGED 44, S/O.N.S. SHENOY, TC 9/1335, SASTHAMANGALAM, PIPPINMOODU, TRIVANDRUM- 10. BY MR. ADV..P.N.RAMAKRISHNAN NAIR MR..P.VISWANATHAN RESPONDENTS: ------------------------- 1. THE CUSTOMS, EXCISE AND SERVICE TAX, APPELLATE TRIBUNAL (SOUTH ZONAL BENCH), 1ST FLOOR, WTC, FKCCI COMPLEX, K.G. ROAD, BANGALORE – 560 009. 2. ASSISTANT COMMISSIOER OF CUSTOMS, ACC, AIR CARGO COMPLEX, KOCHI INTERNATIONAL AIRPORT, NEDUMBASSERY. MR. ADV. THOMAS MATHEW NELLIMOOTTIL,SC- R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13 / 02 /2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ----------------------------- W.P.(C) No.4930 of 2009 -------------------------------------- Dated this the 13th day of February, 2009 JUDGMENT Heard both sides. 2. Challenge in this writ petition is against Exhibits P10 and P12 orders. Exhibit P10 is an order passed by the first respondent, considering the request made by the petitioner under Section 129 -E of the Customs Act for waiver of pre-deposit of Customs duty and additional duty that is payable consequent on the import of a MRI Scanner. 3. The controversy is in relation to the claim of the petitioner for the benefit of Notification 92/2004-Cus dated 10/9/2004. The claim was rejected and appeal was also rejected. It is stated that as a condition for releasing the goods, the petitioner has already furnished bank guarantee for Rs.14,47,391/-. 4. On rejection of appeal, petitioner filed a second appeal before the first respondent Tribunal. Considering the application made by the petitioner for waiver of pre-deposit of the duty levied, Tribunal passed Exhibit P10 order directing pre-deposit W.P.(C) No.4930 / 2009 2 of the entire amount of duty demanded, namely Rs.33,43,605/- and it was adduced that on such pre-deposit, the interest will stand waived till appeal is decided. The petitioner filed Exhibit P11 application praying to modify Exhibit P10 order and that order also rejected by ExhibitP12. 5. On a reading of Exhibits P10 and P12, it can be seen that on facts the Tribunal was not satisfied that the petitioner had made out a prima facie case for waiver of pre-deposit. Orders also show that petitioner had not succeeded in showing any financial difficulties to prove the undue hardships on such deposit. That being the factual position, the first respondent cannot be faulted for the view that was taken in Exhibits P10 and P12. 6. However, it is the admitted position that, the petitioner has already furnished a bank guarantee for Rs. 14,47,391/- and according to the petitioner, the bank guarantee is still kept alive. If that be so, at least to the extent covered by the bank guarantee, the interest of the department is safeguarded. Therefore, taking into account above, I direct that W.P.(C) No.4930 / 2009 3 on the petitioner remitting differential amount, the Tribunal shall hear the appeal filed by the petitioner and decide the matter on merits. Accordingly, writ petition is disposed of directing the petitioner to remit the differential amount mentioned above within four weeks from today and on such deposit, the first respondent, Tribunal shall consider the Appeal No. Customs/365/2008 and pass orders on merits. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE scm