ORDER
J.H. Joglekar, Member (T)
1. This application is for early hearing. We find that the similar application had been turned down by the Tribunal by order dated 3-8-1998. The present application is in the nature of modification of that order and we treat it as such.
2. The Tribunal in its order had held as under :
“The only reason seeking for early hearing is that the goods have been ordered to be confiscated with a redemption fine. This is not a case of absolute confiscation and the differential duty is only Rs. 20.00 lacs. We therefore do not see any reason to hear the appeal out of turn especially having regard to the amount involved including stay applications. Applicant can move fresh application when the position of the Tribunal improves.”
3. Shri D.H. Shah, learned Advocate, submits an affidavit filed by Naresh R. Mehta, the sole proprietor of the appellant firm. In the affidavit it has been claimed that the report of M/s. SGS India Ltd. shows the goods to be of secondary in quality. This report is made after conducting chemical, economical and physical test, whereas the reports by the Customs Appraiser and the representative of the SAIL are made only on visual inspection. The claim made is that he had borrowed a sum of Rs. one crore and rate of interest is 18% per annum, to finance his import on which he had to pay Rs. 27 lakhs only as interest to the creditors. The claim is made that the prices of subject goods have fallen. It is claimed that his case being decided on merits, on the Tribunal finding in his favour he need not pay the differential duty nor the fine in lieu of confiscation.
4. Shri C.P. Rao, learned DR, claimed that the applicant could have sought provisional release of the goods before the adjudication thereby limiting his looses. It is his case that there is no cause for reconsideration of the Tribunal’s earlier order.
5. We have carefully considered the submissions made by both the sides.
6. An application for early hearing has to be considered on several grounds. Where the problem is of recurring nature, the amount involved may not be material because it would be multiplied if the issue is not decided earlier. In the case of a problem of non-recurring nature, where the amounts are such as to harm, the profitable working of the assessee’s unit, then also early hearing may be granted. In the sense it is the extent of injury like loss of finance with the lapse of time that is the material fact deciding the outcome of such an application.
7. Learned Advocate offered to show proof that the amounts stated in the application were borrowed and interest paid amount thereupon. The averment in the affidavit is that the importer is in dire financial hardships. The case according to us, falls in the second category and on this ground alone without going into the merits of the case which must have been consodered by the Bench in the last hearing, we accede the request for early hearing of the appeal. Posted on 16th November, 1998.