TaxTMI 
TaxTMI 
2014 (2) TMI 403
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....umping duty. When final Notification No. 138 of 2002, dated 10-12-2002 was issued making the levy effective from 21-12-2001, the Department demanded anti-dumping duty of Rs. 2,73,31,320/- to the aforesaid extent. 3. The appellant did not attend personal hearings fixed by the Department and original authority issued Order-in-Original confirming the demand as aforesaid. Before the impugned order was passed, there had been three rounds of litigations. Upon remand by the Tribunal, the Commissioner (Appeals) for the third time again dealt with the same matter and the Commissioner (Appeals) passed the order on 25-1-2009 holding that anti-dumping duty can be levied at the interregnum period in accordance with the provisions of law. Following the decision of the Tribunal in the case of Nitco Tiles Ltd. v. Designated Authority, 2006 (193) E.L.T. 17 and other decisions. Commissioner (Appeals) also held that the appellants themselves submitted bond for clearance of CFL in respect of anti-dumping and they have never imported energy saving lamps and that the assessee is liable to pay anti-dumping duty the learned Commissioner passed order for pre-deposit of the entire amount demanded. ....
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.... was urged that Section 9A, sub-section (3) of the Customs Tariff Act, 1975 does not permit to revive a notification i.e., Notification No. 128 of 2001, dated 21-12-2001 and therefore levy of anti-dumping duty based on Notification No. 138 of 2002, dated 10-12-2002 cannot be sustained. It was further contended that when the goods imported are not liable to anti-dumping duty, the authorities cannot insist for pre-deposit and the authorities and the learned single Judge did not keep in view that Notification No. 130 of 2002, dated 10-12-2002 cannot have retrospective operation. 7. Heard Mr. Mahadevan, learned counsel appearing for the Department, learned counsel for the Department submitted that as provisional duty Notification No. 128 of 2001, dated 21-12-2001 ceased to operate after 20-6-2002, the subject matter was left to investigation. The learned counsel submitted that there is a reference in the Notification No. 138 of 2002, dated 10-12-2002 as to the previous notification making it clear that anti-dumping duty was leviable from the date of provisional duty notification i.e., 21-12-2001 in respect of the goods imported from the exporting country. The learned counsel su....
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....on the facts and circumstances of each case. 10. Section 35F of the Central Excise Act reads as under : "35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of Revenue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Co....
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.....)]. 14. By following the above decision of the Apex Court, a Division Bench of our High Court in the decision reported in 2011 (270) E.L.T. 519 (Mad.) (Fayshaw Apparels v. ATFE, New Delhi) wherein one of us (R. Banumathi, J.) was a member, held that interim order of dispensation of deposit should not be passed, merely on establishing a prima facie case and only where it appears that the penalty imposed has no legs to stand or it would be undesirable to ask the appellant to pay the full or part of the penalty, the Appellate Tribunal can dispense with the condition of pre-deposit of penalty. It is also observed therein that the courts will have to keep in view the interest of the revenue of the State/Government Exchequer, while considering the applications for dispensation with pre-deposit. 15. In an yet another decision made in W.A. No. 419 of 2012, dated 17-7-2012 (Commissioner of Customs and Central Excise v. M/s. Visaka Industries Ltd.) [2014 (299) E.L.T. 199 (Mad.)], Division Bench of this Court found as under : "when the assessee had not established a prima facie case of undue hardship necessarily they should be directed to make pre-deposit. There is no via ....