Pre-deposit waiver in customs and excise matters requires a real denial of hearing and a credible case for revenue protection.

Waiver of pre-deposit in customs and excise matters is not justified where the record does not establish denial of hearing and the surrounding facts support protection of revenue. The applicants alleged lack of opportunity and liquidation, but the Tribunal noted that the adjournment request was not shown to have been faxed, no reply was filed to the show-cause notice, and the site and assets had effectively passed out of the applicants' control. In that prima facie factual setting, complete waiver of duty pre-deposit was declined. The applicants were directed to deposit the customs duty and excise duty with interest, after which the penalty pre-deposit was waived and recovery of penalties remained stayed pending appeal.

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Issues: Whether waiver of pre-deposit of the adjudged customs duty, excise duty and penalties was warranted in view of the plea of denial of opportunity and the surrounding factual circumstances.

Analysis: The applicants contended that the adjudication order was passed without adequate opportunity of hearing and that the company was under liquidation. The record showed that the request for adjournment dated 30.10.2009 was received in the Commissioner's office only on 3.11.2009, while no evidence was produced to establish dispatch by fax. The applicants had also not filed a reply to the show-cause notice and had earlier only sought extension of time. The Tribunal further noted the material indicating that the factory premises were no longer in the applicants' possession, that a housing project was being carried out at the site, and that secured creditors had taken possession of substantial assets. In these circumstances, and considering the prima facie case and the need to safeguard revenue, complete waiver of duty pre-deposit was not justified.

Conclusion: The applicants were directed to deposit the entire customs duty and excise duty along with interest within six weeks. Upon such deposit, pre-deposit of the penalties stood waived and recovery of the penalties remained stayed till disposal of the appeal.

Ratio Decidendi: Waiver of pre-deposit is not warranted where the record does not establish denial of opportunity and the circumstances justify securing the revenue, though penalty pre-deposit may be waived on compliance with the deposit direction.

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