It is necessary to evaluate the Writ filed in the issue of differential duty with regard to a portable emergency lamp after 16 years
Fact and issue of the case
This writ petition has been filed, challenging the Order in Original dated 11.05.2004 passed by the first respondent under which the petitioner has been called upon to pay the differential duty of Rs.2,22,427/- in respect of the portable emergency lamp, Model PRL 786, imported by the petitioner in the year 2002.
Denying the contentions of the petitioner, a counter affidavit has been filed by the respondents 1 and 2. According to them, since the Order in Original has been served on the petitioner by the respondents in all the available means as prescribed under Section 153 of the Customs Act and the defaulter has failed to use the opportunity within the stipulated time, filing a writ petition seeking an opportunity to avail an appeal remedy against the Order in Original is time barred and is an attempt to only further delay the process of recovery. They have reiterated that the petitioner is liable to pay the differential duty as claimed in the impugned order in original.
Learned counsel for the petitioner reiterated the contents of the affidavit filed in support of this writ petition and also relied upon the decisions referred to supra in support of the petitioner’s contention.
Per contra, learned Senior Standing Counsel appearing for the respondents 1 and 2 reiterated the contents of the counter affidavit filed by the respondents 1 and 2 before this Court and would submit that the writ petition is not maintainable.
Observation of the court
Learned counsel for the petitioner contends before this Court that the petitioner was not aware of the impugned Order in Original dated 11.05.2004. According to him, even though a recovery notice was issued to the petitioner in the year 2006, the same was replied by the petitioner immediately on receipt of the same. But thereafter no further steps were taken by the respondents to recover the alleged differential duty, which is claimed in the impugned Order in Original. He would also submit that the petitioner was not served with the impugned Order in Original and prior notice was also not received by him. The petitioner has also stated that after receipt of the recovery notice dated 14.02.2020, he has immediately approached this Court by filing this writ petition. The petitioner also contends that in respect of the very same product, namely, emergency lamps, the Commissioner of Customs (Appeals) by its order dated 30.07.2004, involving 68 importers, had granted relief by allowing the Appeals and therefore, the petitioner cannot be discriminated and the same benefit should also be given to him. Learned counsel for the petitioner has also relied upon the decision of the Constitutional Courts, referred to supra, including the decision of this Court dated 20.11.2019 in the case of I.Lakshmanan vs. The Deputy Commissioner of Customs and another in W.P. No.2439 of 2007 in support of the petitioner’s contention that he is not liable to pay the differential duty as claimed in the impugned Order in Original. He would submit that none of the decisions have been given due consideration under the impugned Order in Original and therefore, the impugned Order in Original has to be quashed for non application of mind to the aforementioned decisions as well as the order dated 30.07.2004 passed by the Commissioner of Customs (Appeals) in a batch of identical cases.
Admittedly, the impugned Order in Original is dated 11.05.2004. The petitioner has filed this writ petition only in the year 2020. Under the impugned Order in Original, the petitioner has been directed to pay the differential duty of Rs.2,22,427/-. Since the petitioner has approached this Court belatedly, this Court is of the considered view that after a lapse of almost sixteen years from the date of the impugned Order in Original, he must be put on terms for quashing the impugned Order in Original dated 11.05.2004 and for reconsideration of the same, on merits and in accordance with law, based on the decisions relied upon by the learned counsel for the petitioner as well as the order dated 30.07.2004 passed by the Commissioner of Customs (Appeals), involving a batch of identical cases.
No prejudice would be caused to the respondents if such a direction is issued as the respondents will be getting revenue in view of the deposit made by the petitioner pursuant to the directions given by this Court today.
For the foregoing reasons, this writ petition stands allowed by directing the petitioner to deposit with the first respondent a sum of Rs.2,22,427/- (Rupees Two lakhs twenty two thousand four hundred and twenty seven only) within a period of four weeks from the date of receipt of a copy of this order. On receipt of the same, within the stipulated time, the impugned Order in Original dated 11.05.2004 shall stand quashed and the matter is remanded back to the first respondent for fresh consideration, on merits and in accordance with law. The first respondent shall pass final orders, after giving due consideration to the decisions relied upon by the petitioner in this writ petition, referred to supra as well as the order dated 30.07.2004 passed by the Commissioner of Customs (Appeals) in a batch of 68 cases, within a period of eight weeks thereafter. Consequently, connected W.M.Ps stand closed. No costs.
In the result, appeal of the assessee is allowed and ruled in favour of the assessee