Judgment:
1. This stay application is filed by the applicants under Section 129E of the Customs Act for the waiver of pre-deposit of duty amounting Rs. 16,67,936/-.
2. Shri D.N. Mehta, ld. Advocate appearing for the applicants submitted that the matter relates to interpretation of Notification No. 77/90 dated 23-3-1990. He said that the applicants had imported refractory bricks of special quality for ADD furnace (Argon Oxygen Decarburizer).
The applicants claimed that refractory bricks are classifiable under Chapter Heading 69.02 of the Schedule to the Customs Tariff Act, 1975 read with Notification No. 77/90 dated 23-3-1990. The exemption was denied by the Collector in the impugned order on the ground that the AOD converter for which bricks were imported was not industrial furnace and therefore, the bricks imported were not eligible for the benefit of concessional rate of exemption duty in terms of Exemption Notification No. 77/90. Shri D.N. Mehta said that refractory bricks imported are entitled to benefit of Notification in view of the fact that the Tribunal has held in the case of Alembic Glass Industries- Ltd. v.Collector of Customs reported in 1993 (67) E.L.T. 542, that regenerator having become integral part of the furnace due to advanced glass technology refractory bricks as such are entitled to benefit of Notification No. 242/76 dated 2-8-1976. Since wordings of the Notification No. 242/76 are similar to Notification No. 77/90, the exemption cannot be denied for the goods in question in terms of Notification No. 77/90. Bill of Entry dated 26-5-1993 was assessed and accordingly, duty amounting to Rs. 37,68,300/- was duly paid. Out of the duty assessed the dispute is in respect of Rs. 37,68,300/- only for which the applicants are asking for stay. On a query from the Bench what relief he wants under Section 129E of the Act, since entire duty amount has already been paid, he said that the applicants filing this stay application in terms of observation made by the Bombay High Court in its order in Writ Petition No. WOP/1589/93 dated 16-8-1993 with reference to the writ petition filed by the applicants. He drew our attention to the para 2 of the minutes of the order in that writ petition which reads as under :- "On the petitioners furnishing a bank guarantee of Rs. 8 lakhs to the Collector of Customs, there shall be stay of the redemption fine of Rs. 8 lakhs and the petitioners will be entitled to clear the consignment under the Bill of Entry (Exhibit "B" to the petition) on payment of the full amount of the duty leviable. In respect of the disputed amount the petitioners will file an application for dispensing with the pre-deposit of the duty with the Appellate Tribunal but it is made clear that the application, if filed, will not be heard on merits by the Tribunal until the bank guarantee is furnished, as per Clause 2 of this order. In the event of the Appellate Tribunal dispensing with the pre-deposit of the disputed amount the respondent will refund the same forthwith." He said that he has not come across any case law on this point for ordering the refund of the amount under Section 129E of the Act during the pendency of the appeal since it is a unique case but he insisted to grant waiver of pre-deposit in terms of Section 129E of the Act read with the observation made by the High Court in its order.
3. He argued the matter in detail and persisted that all points are necessary to arrive at the conclusion that prima facie case is in favour of the party and to grant stay. He said that the order is not sustainable in the eye of law as it was passed by the Collector in excess of his jurisdiction. Additional Collector has already taken a decision on 12-7-1993 that the goods could be allowed with exemption.
This decision cannot be reversed by the Collector which amounts to review and same is not permissible. On the issue of jurisdiction, he referred to the following decisions :- 1. Khazanchi Paper & Board Mills v. Supdt. of Central Excise, Kanpur -1977 (1) E.L.T. G144) (All).
2. S.K. Jhunjhunwala v. Collector of Customs, New Delhi -1985 (19) E.L.T. 521.
He contended that the appellants have been importing and clearing refractory bricks for the ADD furnace and availing exemption in terms of aforesaid Notification since number of years and same was not considered by the Adjudicating Authority while denying the exemption.
Referring to the decisions in the case of Quality Steel Products v.Collector of Central Excise, Meerut reported in 1993 (65) E.L.T. 513, Suresh Kumar Banthia v. Collector of Customs reported in 1993 (65) E.L.T. 363 (Cal.), X.L. Telecom Pvt. Ltd. and Ors. v. Union of India and Ors. reported in 1994 (70) E.L.T. 530 (Bom.) and Decor India v.Collector of Customs reported in 1987 (31) E.L.T. 400 (Tribunal), he said that there is no justification for sudden change since tariff has not undergone any change. The Collector (Appeals) erred in not considering expert technical opinion, wherein it was opined that AOD converter for which bricks were imported was industrial furnace. He said that expert opinion cannot be rejected in a lighter manner and not considering the points raised by the applicants are sufficient grounds for quashing the order and in support of his contention, he relied upon the decision in the case of Rajasthan Transformers and Switchgears v.Collector of Central Excise(Tribunal) and Shree Marbles Pvt. Ltd. v. Collector of Central Excise, Jaipur reported in 1993 (68) E.L.T. 623 (Tribunal).
4. While countering the arguments Smt. J.M.S. Sundaram, ld. SDR appearing for the revenue submitted that the remarks made by the Additional Collector in -which representation given by the party on 12-7-1993 was neither a decision nor an appealable order. Since the matter was under investigation within 7 days of such remarks show cause notice was issued and same was adjudicated by the Collector. This point was dealt with in the impugned order by the Collector and the point on the issue of jurisdiction was given up by the party and submitted to the jurisdiction of the Collector as can be seen from the impugned order. She said that it is not a review proceeding and with reference to classification of goods past practice is not a bar to authorities correcting a mistake, after due observation of principle of natural justice as it was done in this case and she referred to the decision in the case of Rawal Industries v. Collector of Customs, reported in 1992 (62) E.L.T. 727 in support of her contention. It is not correct to say that an expert opinion was not considered in this case. Collector arrived at the conclusion after taking into consideration of the expert opinion and since the matter required to be examined in detail with reference to this issue, no prima facie case has been made out by the party at this stage for granting stay. Accordingly, she strongly opposed for granting stay.
5. In reply, Shri Mehta submitted that consent will not confer jurisdiction on authorities unless the powers are conferred under the statute and an order passed by the authority without jurisdiction is not sustainable in the eye of law.
6. On a careful consideration of the arguments advanced by both the sides, we are not convinced with the points raised by the appellants to hold that strong prima facie case is in favour of the party to grant the relief as prayed for. The jurisdiction, merits and demerits and all the points have to be examined in detail which can be done at the time of regular hearing. There is no in-built in Section 129E of the Act for granting the refund of the duty which has already been deposited nor the Tribunal is empowered to give such relief under Section 129E of the Customs Act. If the amount required to be deposited, the Tribunal may dispense with such deposit after taking into consideration of the facts and circumstances of the case and balance of convenience. We are of the view that the question of waiver of pre-deposit under Section 129E of the Customs Act does not arise since duty has already been deposited.
The High Court also has not given such direction for dispensing with the pre-deposit but observed in the event of Appellate Tribunal dispensing with the pre-deposit of the disputed amount, the respondents will refund the same forthwith. Neither grant of pre-deposit under Section 129E of the Customs Act arises in this case nor we find that any extraordinary circumstance to grant such relief as prayed for by the appellants during the pendency of the appeal by exercising inherent jurisdiction. In the view we have taken stay application filed by the party is hereby dismissed.
7. In view of the direction given by the High Court that this matter is to be disposed of as expeditiously as possible preferably within four months and stay passed by the High Court is duly complied with as reported by the party, the matter will be taken up for final hearing and accordingly, this appeal is posted for regular hearing on 26-11-1993. This matter should be placed at the top of the list as regular matter on that day.