@JUDGMENTTAG-ORDER
K. Raviraja Pandian, J.@mdashThe above writ petition is filed for issuance of a writ of certiorari to call for the records of the first respondent pursuant to the order in Appeal No. C/161/2003 dated 9.6.2004 and quash the same.
2. In this writ petition, the petitioner challenges the order passed by the first respondent confirming the order of the second respondent non-suiting the petitioner for waiver of pre-deposit for maintaining the appeal before the second respondent. The precise case for disposal of the writ petition is that the petitioner imported blended scotch whisky and cleared the same on 31.8.2001 on payment of 210% duty as demanded by the respondents. Subsequently the respondents by show cause notice dated 12.2.2002 issued u/s 28(1) of the Customs Act called upon the petitioner to show cause as to why short collection of additional duty should not be imposed on the import of the petitioner and thereupon an adjudication order was passed on 3.6.2002 confirming the demand of Rs. 23,70,307/- towards short collection of duty u/s 28(2) of the Customs Act. That order was carried on in appeal before the second respondent Commissioner of Customs (Appeals). Along with the appeal the petitioner also filed an application u/s 129(E) of the Customs Act for waiver of the pre-deposit as per statute. As seen from the order of the Commissioner dated 24.1.2003 the petitioner was directed to pre-deposit the amount demanded and report compliance on or before 7.2.2003. Thereupon at the instance of the petitioner the time for payment has been extended upto 7.3.2003. The petitioner once again by his letter dated 3.3.2003 requested for extension of time by two more months, which the Commissioner found that the petitioner was not entitled to and rejected the appeal. That order was carried on in further appeal before the first respondent, who by his order impugned non-suited the petitioner for the relief on the premise that the petitioner does not have any strong case on merits, however taking into consideration of the financial constraints pleaded by the petitioner, the first respondent directed the petitioner to deposit the amount within a period of three months. As the petitioner has not pre-deposited the entire amount within three months the first respondent has dismissed the appeal by his order dated 9.6.2004. Aggrieved by that order, the petitioner has filed the present writ petition with the prayer as stated above.
3. The requirement of Section 129E has been considered by this Court as well as the Supreme Court in various cases and the consideration that has to be taken note of is prima facie case and also the financial hardship pleaded by the petitioner. On the ground of prima facie case both the authorities has found that the demand has been made u/s 28(1) for the short levy of duty . There cannot be any strong ground against any such demand in favour of the petitioner. Having regard to the hardship pleaded by the petitioner the first respondent has taken note of the same and directed to pay the entire amount of duty by granting further three months time. Even before this Court, except mere argument that the case of the petitioner can be considered sympathetically and also making further argument that if the additional duty has been levied at the time of clearance the petitioner would have sold the goods with little bit higher margin and recovered the amount, nothing has been put forth about the financial position of the petitioner. That argument cannot be accepted. When the statute provides that the authorities are having power to recover the short levy duty and if the authorities issued notice within the time stipulated therein, the other consequences that the petitioner sold the goods for lower amount cannot by itself ipso facto be a reason for consideration. Except the above argument no other argument has been argued on behalf of the petitioner. Having regard to the above statement that the prima facie case has been considered against the petitioner and the hardship has also been considered by the first respondent, I do not find any reason to interfere with the impugned order.
4. In the result, the writ petition is dismissed. Consequently, the connected W.M.P.M.P. is also dismissed. No costs.
