IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 17593 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE M.S.SHAH and HON'BLE MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SHIVANGI IMPEX Versus UNION OF INDIA -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 17593 of 2003 MR PARESH M DAVE for Petitioner No. 1-2 MR DN PATEL for Respondent No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.S.SHAH and HON'BLE MR.JUSTICE A.M.KAPADIA Date of decision: 13/02/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE M.S.SHAH) Rule. In the facts and circumstances of the case, the petition is taken up for final disposal today. 2. What is challenged in this petition under Article 226 of the Constitution is the common order dated 20.10.2003 (Annexure "D") passed by the Commissioner of Customs & Central Excise (Appeals) being stay order Nos. 1 to 4/KDL/2003/RAJ requiring the petitioners to make predeposits of Rs.2,25,000/- (Appeal No.S/49-57/KDL/ 2001), Rs.3,40,000/- (Appeal No.S/49-58/KDL/2001), Rs.2,90,000/- (Appeal No.S/49-59/KDL/2001) and Rs.2,90,000/- (Appeal No.S/49-60/KDL/2001) as against the customs duty confirmed by the order-in-original of the Deputy Commissioner of Customs, Kandla at Rs.4,52,753/-, Rs.6,80,935/-, Rs.5,82,171/- and Rs.5,79,473/respectively. In view of the fact that the petitioners did not make the predeposits as required by the said order, the Commissioner (Appeals) has also dismissed the petitioners' appeals by order dated 14.11.2003 (Annexure "F"). Hence, this petition challenging the said order as well. 3. Mr Paresh M Dave, learned counsel for the petitioners has submitted that the Deputy Commissioner of Customs, Kandla had issued five show cause notices in relation to customs duty paid on 2.4.1997 in two cases, on 2.5.1997 in the third case, on 23.4.1997 in the fourth case and on 29.4.1997 in the fifth case, but in all these cases the show cause notices under Section 28 were served upon the petitioners after the period of six months from the date of payment of duty. In all these five cases, the Deputy Commissioner issued the show cause notice alleging short levy of duty on the ground that the value of Zinc Ingots as mentioned in the involve at the rate of US$ 650 per MT was much less than its market value of US$ 1268 per MT. Although the Deputy Commissioner passed similar orders in all the five cases, in four appeals the Commissioner (Appeals) passed the impugned stay order by which the petitioners were requires to deposit almost 50% of the duty demanded whereas in the fifth appeal the Commissioner (Appeals) has by order dated 19.1.2004 not only waived the predeposit, but has finally disposed of the appeal and remanded the matter to the Deputy Commissioner for ascertaining whether the demand was time barred and also for ascertaining the value of contemporaneous imports. Mr Dave has also produced a copy of the said order dated 19.1.2004 which is taken on record at Annexure "H" to the petition. It is, therefore, submitted that since all the five appeals pertain to the show cause notices issued around the same time and are concerned with the imports made around the same time and involve the same controversy, the order of predeposit dated 21.10.2003 requiring the petitioners to deposit almost 50% of the duty demanded by the Deputy Commissioner of Customs in four cases required to be set aside, and so also the consequential order dismissing the four appeals. 4. On the other hand, Mr DN Patel, learned senior standing counsel for the Central Government has submitted that since the Commissioner (Appeals) has already ordered to waive 50% of the duty demanded by the Deputy Commissioner, there is no warrant for interfering with the impugned order of the appellate authority. 5. Having heard the learned counsel for the parties, in the peculiar facts and circumstances of the case, it appears to the Court that when in the case of this very petitioner, five show cause notices were issued in September/October, 1997 in relation to the duty paid between 2nd April and 2nd May 1997 and the orders of the Deputy Commissioner were passed on the same basis about the difference between the price of Zinc Ingots as mentioned in the invoices and the market price as determined by the Deputy Commissioner, it would be in the fitness of things if the impugned common order of predeposit and the consequential common order of dismissal of appeals are set aside and the matter is remanded to the Commissioner of Central Excise & Customs (Appeals) for passing appropriate orders on the stay applications and on the appeals having regard to the order dated 19.1.2004 passed by the same Commissioner (Appeals). 6. In view of the above discussion, the common order dated 20.10.2003 (Annexure "D") passed by the Commissioner of Customs & Central Excise (Appeals) being stay order Nos. 1 to 4/KDL/2003/RAJ and the impugned order-in-appeal dated 14.11.2003 (Annexure "F") are hereby quashed and set aside and the matter is remanded back to the Commissioner of Central Excise & Customs (Appeals), respondent No.2 herein, for hearing and deciding the stay applications and the appeals in accordance with law and in light of the observations made in this judgment. It is clarified that this Court has not gone into the merits of the dispute between the parties. 7. The petition is accordingly allowed. Rule is made absolute to the aforesaid extent with no order as to costs. (M.S. Shah, J.) (A.M. Kapadia, J.) sundar/-