2015 (5) TMI 284 - HC - Customs

Court modifies pre-deposit order for Anti-Dumping Duty, directs payment allocation

The Court modified the Tribunal's order on pre-deposit regarding Anti-Dumping Duty (ADD) by considering the excess payment made by the appellant. The ... Waiver of pre deposit - Evasion of custom duty - question on quantum of deposit amount ordered by the tribunal - Suppression of value of goods - Held that:- It is seen from the orders of the Adjudicating Authority as well as the order of the Tribunal, that on demand, the appellant has paid a sum of ₹ 73,34,856/- towards Anti-Dumping Duty and a sum of ₹ 35,31,843/- was appropriated towards customs duty. It is to be noted that vide final notification No.121/2006-Cus. dated 26.12.2006, the anti-dumping duty was reduced to ₹ 60.00 lakhs. Hence there is an excess payment towards anti-dumping duty. - if anti-dumping duty is reduced and the amount so paid is in excess of the demand, the said amount shall be refunded. Tribunal, without taking note of the excess payment made, had ordered pre-deposit of ₹ 60.00 lakhs, which is not in consonance with the above-said provision. - taking note of the deposit made towards anti-dumping duty at ₹ 73,34,856/- in excess of the final notification dated 26.12.2006 at ₹ 60.00 lakhs, we are inclined to accept the plea of the appellant. However, taking note of the demand of customs duty, at this point of time, the amount shall not be refunded. - Partial stay granted. Issues:1. Whether the Tribunal's decision on pre-deposit of Anti-Dumping Duty (ADD) was correctRs.2. Whether the Tribunal erred in directing the appellant to deposit a specific amount towards the total ADD demand when a portion had already been paidRs.3. Should the excess payment made by the appellant towards ADD be considered for refund as per the Customs Tariff ActRs.4. Was the appellant justified in their claim regarding the excess payment and the Tribunal's order for pre-depositRs.5. How should the Tribunal's order on pre-deposit be modified based on the excess payment made by the appellantRs.Analysis:1. The appellant was involved in importing silk fabrics with alleged under-valuation and over-valuation, leading to a demand for customs duty and provisional ADD. The Tribunal ordered pre-deposit of &8377; 60 lakhs despite the appellant having paid &8377; 73,34,856 towards ADD, raising questions on the necessity of the pre-deposit given the excess payment already made.2. The Customs Tariff Act allows for a refund of excess ADD collected when the final duty amount is reduced. The appellant argued that the Tribunal failed to consider the excess payment of ADD and ordered pre-deposit unjustly. The Court noted the provision for refund and the appellant's payment exceeding the final ADD amount of &8377; 60 lakhs.3. Considering the excess payment made by the appellant towards ADD, the Court found merit in the appellant's claim and modified the Tribunal's order. The Court directed that &8377; 60 lakhs from the payment of &8377; 73,34,856 should be appropriated towards ADD, with the balance for customs duty. Additionally, the appellant was directed to deposit a further &8377; 25 lakhs towards the duty liability to comply with the modified pre-deposit order.4. The Court acknowledged the appellant's argument regarding suffering prejudice during adjudication due to seized records not being returned. While refraining from commenting on this issue, the Court suggested that the Department should consider returning the seized records upon a formal request from the appellant.5. In conclusion, the Court modified the Tribunal's pre-deposit order, emphasizing the excess payment made by the appellant towards ADD. The appellant was directed to make additional deposits as per the modified order, and the pre-deposit of the remaining amount demanded was waived pending the appeal before the Tribunal.