1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6981 of 2009 Semco Electric Private Limited .. Petitioner versus The Union of India and ors. .. Respondents ... Mr.V. Sreedharan with Mr.Gajendra Jain and Mr.Jeetu Motwani for the petitioner. Mr.Rohit B. Pardeshi for respondents. CORAM : F. I. REBELLO AND D.G. KARNIK, JJ DATED : 16th September 2009 P.C:- 1. Rule. Heard forthwith. 2. The petitioner in the instant case exported goods. No Central Excise duty was levied as the goods were to be exported. According to the petitioner, at the time of export, the container containing the goods was sealed by the proper Officer of Central Excise. The proper Officer of Customs has thereafter certified that the container was 2 sealed as evidenced by the shipping bill on which was certified by the Customs Officer. The petitioner received a complaint from their customer that all goods had not been received. Based on their complaint, the petitioner filed an FIR with the local police station apprehending that the goods had been lost in transit. The petitioner also lodged an insurance claim. The insurance company accepted the claim and released the money in favour of the foreign buyer. 3. In Chapter 2 of para 2.25.2 of the Handbook of Procedures, pertaining to the general provisions regarding exports and imports reads as under:- Amount of General Insurance Cover for transit loss would be treated as payment realized for exports under various export promotion schemes. 4. The respondents based on the FIR filed by the petitioner issued a show cause notice contending that as the goods were not exported, the petitioners were not entitled to exemption from excise duty and had to pay the same. An order came to be passed against the petitioner. An appeal was preferred which was dismissed. Against that order, petitioners are in second appeal. 3 5. The petitioners herein applied for waiver of pre-deposit at the time of filing the appeal. On 10th June 2009, the learned Tribunal was pleased to make an order of pre-deposit of the entire amount of duty. The petitioner had to comply with the same by 11th August 2009. The petitioner filed the petition before this court on 8th August 2009. The appeal came up for hearing on 13th August 2009 on which date the appeal was dismissed on the ground that the petitioner had been unable to produce a stay order. 6. The petition has subsequently been amended to challenge the order of dismissal of the appeal itself. 7. In our opinion, when it was pointed out to the Tribunal that Writ Petition had been filed even though no stay was obtained, the Tribunal ought to have granted some time to the petitioner to move this court for interim relief. More specifically when the attention of the Tribunal was invited to the fact that Writ Petition had already been filed. Avoidance of multiplicity of proceedings as also docket explosion both before this court and the learned Tribunal, as a fact that must be taken note of. Our justice system is not to penalise a party who approaches a court or Tribunal. Granting some additional time to a party would not 4 have defeated the cause of justice. That does not mean that the party can make an unreasonable demand for extension of time. How much time should be granted is in the discretion of the Tribunal, but a reasonable expectation would be to to give adequate time to move this court after the Tribunal’s attention is invited to the fact that a Writ Petition is already filed. 8. Coming to the merits of the matter, we find that in the instant case, the only basis on which duty has been demanded is based on the FIR filed by the petitioners. An FIR by itself is no evidence of no export. In the instant case, the policy of the Government of India itself is, that when the amount of General Insurance Cover for transit loss is paid, that is deemed to be realization for exports under various export promotion schemes. 9. Once that be the case at least the petitioners had made out a strong prima facie case and the mere fact that they had filed a FIR to initiate the process of investigation when they came to know that the goods had been stolen in transit cannot result in holding that the goods were not exported. At any rate, we do not propose to arrive at any final conclusion and leave it to the Tribunal to finally decide the 5 same, bearing in mind the presumption that would arise from para no. 2.25.2 quoted earlier. 10. Considering that the petitioners have made out a strong case, in our opinion, calling upon them to deposit inspite of the evidence of export, including payment of the insurance money to the foreign buyer, discloses total non application of mind on the part of the Tribunal. The expression “undue hardship” has now been explained in various judgment of the Supreme Court. The Supreme Court has now taken the view that once a party shows that they have strong prima facie case to calling on the party to deposit by itself will amount to undue hardship {See B.M. Malini Vs. Commissioner of Income tax (2008) 306 ITR 196(SC)}. In our opinion, this is one such case. In the light of that, the following order. 11. The impugned order of pre-deposit is set aside. Appeal is restored to file. Appeal to proceed without any deposit. 12. The petitioner, however, to file an undertaking before the Tribunal that in the event appeal is dismissed, he will be bound to pay the amount as claimed subject to whatever legal rights the Petitioners 6 have. Undertaking to be filed within four weeks from today. 13. Rule made absolute accordingly. No order as to costs. (D.G. KARNIK, J) (F.I. REBELLO, J)