SCA/30770/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30770 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= FAIRDEAL SUPPLIERS PVT LTD - Petitioner(s) Versus UNION OF INDIA THRO' SECRETARY & 2 - Respondent(s) ========================================= Appearance : MR MIHIR JOSHI with MS AMRITA M THAKORE for Petitioner(s) : 1, MR HARIN P RAVAL for Respondent(s) : 1 - 3. ========================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 18/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) SCA/30770/2007 2/4 JUDGMENT RULE. Mr. Harin Raval waives service of Rule for the respondents. In the facts and circumstances of the case, the petition is taken up for final disposal today. 2. This petition under Article 226 of the Constitution is directed against the order dated 27.08.2007 of the Customs, Excise and Service Tax Appellate Tribunal, Ahmedabad Bench on Stay Application No.938 of 2007 in Customs Appeal No.353 of 2007. 3. Since the impugned order is an order for pre-deposit passed by the Tribunal under Section 129(B) of the Customs Act, 1962, we do not propose to set out all the factual details or the rival contentions of the learned counsel for the parties. Suffice it to state that against the duty amount of Rs.57,38,518/- confirmed by the adjudicating authority, the petitioner preferred an appeal before the Tribunal. By the impugned order, the Tribunal has directed the petitioner to make pre-deposit of Rs.40 lacs within stipulated time limit which was last extended upto 02.01.2008. In the meantime, the petitioner moved this Court by filing the present petition. 4. The controversy was about the ash content in the imported coking coal. If the ash content of the same is below 12%, the rate of custom duty would be 5%. If it is in excess of 12%, the rate of duty would be 15%. According to the department, the ash content SCA/30770/2007 3/4 JUDGMENT was 15.62% as per the test laboratory report dated 18.07.2002. 5. The petitioner–assessee's case was that the said report dated 18.07.2002 was supplied to the petitioner for the first time along with the show cause notice issued on 31.07.2005 (Annexure-G). It is submitted that serious prejudice was caused to the petitioner by late communication because after three years, the imported coke coal was too stale to undergo any ash content test and in the meantime most of the goods were already cleared on provisional basis. It is also vehemently submitted by Mr. Mihir Joshi and Ms. Amrita Thakore for the petitioner that out of the coal imported, one part of the consignment was sold to Maha Bhagwati Traders and in case of the sample taken from the said goods, its analysis report was admittedly–Ash content–below 12%. It is, therefore, submitted that for the other parts of the same consignment, the ash content could never be said to be in excess of 12%. 6. Mr. Harin Raval for the respondent authorities has supported the order of the Tribunal and submitted that since it is an order of pre-deposit, no interference of this Court is called for. 7. Having heard the learned counsel for the parties, in the facts and circumstances of the case, we are of the view that this is a fit case for waiver of the pre-deposit of the duty amount and other charges. SCA/30770/2007 4/4 JUDGMENT 8. We accordingly set aside the impugned order of the Tribunal and direct the Tribunal to proceed to take up the appeal itself for final hearing without requiring any pre-deposit. The petitioner shall, however, submit a bond for the amount of Rs.40 lacs. It is clarified that the Tribunal will be at liberty to hear and decide the matter in accordance with law, without being influenced by the observations made by this Court. 9. In view of the above order, the detention order dated 26.12.2007 of the Assistant Commissioner of Customs, GPPL Pipavav is also quashed and set aside. 10. The petition is accordingly allowed in the above terms. Rule is made absolute with no order as to costs. [M.S. SHAH, J.] [RAVI R. TRIPATHI, J.] mrpandya*