Customs - Appeal - CESTAT by Majority Orders 50% deposit- Difference of opinion itself should have been sufficient reason to give substantial relief in pre-deposit - High Court
IN Unifax vs Commissioner - , there was a difference of opinion between the two Members of the Division Bench at the Stay stage itself.
Holding that the prima facie view is that the demand in question is barred by limitation, the Member (J) ordered unconditional stay in the matter and allowed all the stay petitions.
The Member (Technical) differed with the above view and came to the conclusion that the appellant did not have any Prima facie case for total waiver of pre-deposit. He directed the appellant to make a pre-deposit of 50% of total demand.
So, the matter was referred to a Third Member with the question whether the applicants to be granted unconditional stay in all four appeals as arrived at by learned Member (J) or they were required to be asked pre-deposit of 50% out of customs duty of Rs.82,71,874/- as held by Member (Technical).
The Third Member agreed with the Member (T) and ordered pre-deposit of 50% of the duty demanded.
The assessee is in appeal before the High Court.
The High Court ordered:
It is evident from the materials on record that there appears to be a conflict within the department itself as to the proper classification of goods i.e. whether they are to be cleared under tariff heading 8443 32 70 or 8443 32 60. This coupled with the fact that one Member of the CESTAT was of the opinion that the extended period of limitation was not properly invoked, is in the opinion of this Court sufficient for the Tribunal to have made an order granting substantial relief. Having regard to these facts this Court is of the opinion that the impugned order to the extent it requires deposit of 50% of the amount should be modified. Instead the petitioner should be permitted to deposit 20% of the amount as a pre-condition subject to which its appeal may be heard.
When one Member says no pre-deposit is required and another thinks otherwise, shouldn't the assessee get the benefit of doubt and total waiver as at least one Member of the Tribunal believes that there is no prima facie case against him?