2009 (7) TMI 595

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....filled the export obligation. Shri Manish further submits that although materials were produced before the lower Appellate Authority, stating that bank guarantee for Rs.31,66,464/- has already been encashed by Revenue in terms of page 53-54 of appeal folder against above demand, appellant was denied justice. Had this aspect been considered, learned Commissioner (Appeals) would not have passed an order against the appellant. But the learned Commissioner (Appeals) directed pre-deposit of Rs.50 lakhs by order dated 18-5-2009 within 30 days of receipt of the order. The order was received on 25-5-2009 and 30 days period has already been expired making the appeal liable to be dismissed since the appellant has not deposited that amount within 25-5....

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....f Slate items. Hence in accordance with the policy provisions, the appellants were not required to maintain past performance. The appellants have a strong case for deletion of the past performance as per the policy provision and request for the same is pending before the DGFT. It would be unfair to adjudicate upon the matter till the concerned authority has come to a conclusion. (2) The appellants have fulfilled EO to the extent of 43.30% imposed under the licence and hence customs can now ask for payment of proportionate duty forgone which comes to Rs.36,52,888/- i.e. 5 7% of Rs.64,08,576/-. However, the department has already invoked 3 bank guaranties amounting to Rs. 31,66,464/- towards the remaining duty forgone amount. (3) The appell....

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....Commissioner (Appeals) is directed to reconsider the matter on the basis of merits without insisting for pre-deposit to remove undue hardship to the assessee. 5. Learned DR objects to the submissions of the appellant. He brings to our notice that when the appellant has failed to avail the successive chances given by the authorities below, adjudication order was passed. That has pressed to call for pre-deposit of Rs. 50 lakhs by the learned Appellate authority. Therefore, when there is no remedy against the order under Section 129-E of Customs Act, 1962 available to the appellant, it should suffer for its own negligence. Learned DR relies on the decision in the case of CCE, Calcutta v. Alnoori Tobacco Products reported in 2004 (170) E.L.T. ....

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....nto consideration about the encashment of bank guarantee. So also the evidence relied by the learned Counsel in the course of hearing as appearing at page 175 of appeal folder in reply to show cause notice had not received his consideration. When the learned Counsel brings out that materials are available to satisfy the authorities below, it would be proper to remit back the matter to the learned Commissioner to reconsider the entire issue dispensing with pre-deposit since the appellant has suffered running from pillar to post. Appreciating that the Writ Petition has protected the appellant, we direct the appellant to appear before the learned Commissioner (Appeals) within two weeks from the date of receipt of this order and file an applica....