Whether stay order should be modified if the assessee subsequently evidences that export obligation has been fulfilled?

PJ/Case Laws/2012-13/1522

Case:- SANJAY PARASRAMPURIA Versus COMMISSIONER OF CUSTOMS (EXPORT)

Citation:- 2013 (289) E.L.T. 404 (Bom.)

Brief Facts:- The appellants had obtained 106 advance licenses from time to time with an obligation to fulfill the export obligation by importing duty free raw materials under those licenses. As the appellants failed to furnish documents to show that the export obligation has been fulfilled, the adjudicating authority confirmed the duty demand in respect of imports made under the 106 advance licenses. Challenging the aforesaid orders, the appellants filed appeals before the CESTAT. Before the CESTAT, the appellants could produce documents to show fulfillment of export obligation in respect of 69 advance licenses. However, the appellants could not produce documents relating to the remaining 37 advance licenses. As a result, the Tribunal directed the appellants to make the pre- deposit of duties/penalty [2011 (264) E.L.T. 427 (Tribunal)]. Thereafter, Miscellaneous Applications were filed by the appellants stating that subsequent to the order of pre-deposit, the appellants could retrieve from their files which would establish that exports had been effected under the 37 advance licenses. As these documents were not furnished earlier, the appellants sought recalling of the pre- deposit order. The Tribunal declined to entertain the Miscellaneous Applications. Thereafter appellant filed appeal before Hon’ble High Court.

Reasoning of Judgment:-The Hon’ble High Court heard the appellant and considered that although the appellants had failed to produce documents to establish that exports under the 37 advance licenses have been effected, before the Tribunal passing the pre-deposit order, in view of the fact that the appellants have subsequently produced documents to show that the exports have been effected and it is claimed that the exports effected are more than the export obligation required to be fulfilled as against the imports under the said 37 advance licenses, in the opinion of High Court, it would be just and proper to set aside the pre-deposit order and direct the Tribunal to pass fresh order in that behalf.

Accordingly, the impugned order of pre-deposit passed in all these appeals are quashed and set aside and the matter is restored to the file of CESTAT for fresh consideration in accordance with law. All the appeals are disposed of accordingly with no order as to costs. All the contentions of both the parties are kept open.

Decision:-Pre-deposit order set aside and case remanded back for fresh consideration.

Comment:- The essence of this case is that when the assessee has produced evidential documents indicating that export obligation has been fulfilled by them which could not be produced at the time when Tribunal passed pre-deposit order, the documents ought to be considered by the Tribunal subsequently in the Miscellaneous Application filed by the appellant.

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PJ/Case Laws/2012-13/1522

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