:1: bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.410 OF 2010 Sparkling Traders Pvt.Ltd. & Anr. ..Petitioners Vs. Union of India & Ors. ..Respondents Mr.V.Sridharan with Mr.H.V.Mehta for petitioners. Mr.P.S.Jately for respondents. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE : 23RD MARCH,2010 P.C. Heard. Perused petition. Rule, returnable forthwith. Mr.P.S.Jately waives service on behalf of the respondents. INTRODUCTION: 2. This petition, filed under Article 226 of the Constitution of India, is directed against the order of Customs Excise & Service Tax Appellate Tribunal, West Regional Bench at Mumbai (“CESTAT” for short) directing petitioner to make pre-deposit of Rs.34,00,000/- in the appeal filed by it challenging the order of the Commissioner of Customs (Appeals). BACKGROUND FACTS: 3. The relevant facts disclosed by the petitioner in the present petition are that, the petitioner placed an order for supply of Citric Acid Monohydrate :2: (“CAM” for short) with M/s.Siu Hon Traders, Hong Kong. About 32 importers of Citric Acid from Western India placed orders for supply of CAM manufactured and exported from Korea. The petitioner paid the price for Citric Acid manufactured in Korea. The first consignment of 40 MT of CAM manufactured in Korea arrived in Mumbai Port. The petitioner filed Bill of Entry and paid customs duty. 4. The Government of India levied anti-dumping duty (“ADD” for short) on Citric Acid originating in, or exported from the People’s Republic of China by Notification No.78/2000-Cus on 26th May, 2000. As there was ADD on Chinese goods, the Customs Department was vigilant in examining Citric Acid bags to prevent any Chinese goods entering in India without payment of ADD. The Customs Department after filing of the Bill of Entry dated 17th January, 2003, took 21 days to find out consignee of goods from Korean Customs and Korean Chamber of Commerce and Industry and to make investigation. The genuineness of the import was verified with reference to Stencil Marks on each bag of the CAM of 50 kgs. packed in woven polysacks/bags containing poly lined paper put in brown paper bags. Each bag on top had stencil marks CAM along with the name of the manufacturer, address of the manufacturer, batch number under which the goods were manufactured in the factory, alongwith net weight of the goods in each bag etc. The Customs Department, after thorough investigation conducted for about 21 days, allowed the clearance of the goods for home consumption, on prima facie satisfaction that the goods were from Korea. The petitioner paid demurrage charges for 21 days. 5. The Notification issued by Govt. of India dated 26th May,2000 imposing ADD expired on 23rd November, 2003. 6. It appears that the Additional Director, Directorate General of Central Excise Intelligence, Government of India, Mumbai initiated enquiries regarding :3: 32 Importers from Mumbai, who had placed orders for supply of CAM with M/s.Siu Hon Traders, Hong Kong. 7. The Director of Revenue Intelligence (respondent No.4 herein) appears to have investigated the matter and based on such investigation, show cause notice was issued to the petitioner on 17th January, 2008 alleging that the goods were not that of Korean origin but they were of Chinese origin. It was thus alleged that the petitioner had evaded ADD to the tune of Rs.73,43,448/-. 8. In reply to the Show Cause notice, the petitioner in its reply dated 13th January,2009 maintained that there was no mis-declaration in respect of the country of origin. It was of Korean origin and not of the Chinese origin. Since there was a threat of arrest, respondent No.2 appears to have deposited a sum of Rs.20,00,000- with further deposit of Rs.1,00,000/-. Thus, petitioner deposited total sum of Rs.21,00,000/-. The show cause notice was heard and ultimately, the duty demand in the sum of Rs.55,00,000/- was confirmed against the petitioner by an order dated 23rd/25th February, 2009. 9. The petitioner filed an appeal before respondent No.2 along with an application for stay. The said application was heard by the Tribunal. The Tribunal, vide its order dated 17th December, 2009 was pleased to direct petitioner to make pre-deposit of Rs.34,00,000/- out of Rs.55,00,000/-, considering deposit already made in the sum of Rs.21,00,000/-. 10. Being aggrieved by the aforesaid order dated 17th December, 2009, the petitioner has invoked writ jurisdiction of this Court. SUBMISSIONS: 11. Learned Counsel for the petitioner, while disputing the allegations of fraud made by the Revenue, submits that factually the goods were of Korean origin. They were not Chinese goods. Learned Counsel for the petitioner :4: further submits that they have made out a prima facie; case on merits and that balance of convenience lies in their favour. The order of pre-deposit is causing undue financial hardship to the petitioner. 12. According to the petitioner, it is now well settled that an existence of a prima facie case for granting dispensation of pre-deposit does not necessarily mean that the petitioner must have a gilt-edged case which is bound to succeed. He further submits that the ADD Notification expired on 23rd November, 2003 was not repealed, as such, Section 6 of the General Clauses Act is not applicable. According to him, after the expiration of Notification dated 23rd November, 2003, no show cause notice could be issued to demand ADD. No reliance can be placed on the Notification No.78 of 2000 after 23rd November, 2003. Reliance is placed on the Apex court judgment in the case of S.Krishnan Vs. State of Madras AIR 1951 SC 301(Para 38) in support of the submission made. 13. Per contra, Mr.Jately, learned Counsel for the respondent, while refuting the submissions made by learned counsel for the petitioner, submits that the action of the respondents is well protected under the umbrella of Section 159A of the Customs Act,1962, which, interalia; deals with the effect of amendments etc. of rules, regulations, notifications or orders. It lays down that unless a different intention appears, amendment, repeal, supersession or rescinding of any rule, regulation, notification of order made or issued under the Customs Act shall not affect the previous operation or anything duly done or suffered thereunder or affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder or any penalty, forfeiture or punishment incurred thereunder and any such investigation, legal proceeding or remedy may be instituted, continued or enforced in relation to such notification as if it had not been repealed, superseded or rescinded. He, thus, submits that the liability to pay ADD can very well be enforced under Section 159A of the Act. He, thus, submits that the impugned order needs no interference at the hands of this Court. :5: CONSIDERATION: 14. Having heard rival contentions, this Court has to examine the validity of the impugned order on the touch stone as to whether or not the prima facie case is made out by the petitioner for dispensing with pre-deposit. The Calcutta High Court in Ruby Rubber Industries Vs. CCE (1998) 104 ELT 330 (Cal) held that an existence of a prima facie case for granting or dispensation of pre-deposit does not necessarily mean that the petitioner must have a gilt- edged case which is bound to succeed. 15. The Apex Court, in the case of Martin Burn Ltd. Vs. R.N.Banerjee AIR 1958 SC 79.(Para 27) ruled as under: 27. “............................................A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima face case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence...........................” 16. Reading of the aforesaid extracted portion would unequivocally go to show that the petitioner is not required to make out an iron cast case. Considered from this angle, one of the arguments advanced by learned Counsel for the petitioner is that the ADD Notification dated 26th May, 2000 having expired on 23rd November, 2003 by lapse of time, Section 6 of the General Clauses Act has no application since it was not repealed. If this submission is accepted, the petitioner has a good prima facie; case to succeed. It is a potent argument. Reliance placed on the judgment of the Apex Court in the case of S.Krishnan Vs. State of Madras (Supra), prima facie leans in favour of the submission made by the petitioner. One can conveniently say that prima facie; case exists in favour of the petitioner on this count alone. :6: 17. In the case of Union of India & Anr. Vs. Adani Exports Ltd. & Anr. 2007 AIR SCW 7134, while considering the question of dispensation of pre-deposit, Apex Court observed that; “The three aspects to be focused while dealing with such applications are (a) prima facie case (b) balance of convenience and (c) irreparable loss. Even when Tribunal decides to grant full or partial stay it has to impose such conditions as may be necessary to safeguard the interest of revenue. It is held to be imperative.” 18. Keeping the above observations in mind and considering the fact that the petitioner has already deposited a sum of Rs.21,00,000/- with the Revenue, no further amount by way of pre-deposit needs to be asked for. 19. In the aforesaid view of the matter, the impugned order to the extent it directs deposit of balance amount of Rs.32,00,000/- is modified and the figure of pre-deposit stands substituted with that of the deposit already made in the sum of Rs.21,00,000/-. The petition is, thus, partly allowed. Rule is partly made absolute in terms of this order. No order as to costs. (K.K.TATED,J.) (V.C.DAGA,J.)