2012 (11) TMI 558 - HC - Central Excise

Waiver of pre-deposit - financial hardship demand of duty and penalty - petitioner is a company engaged in manufacturing of textile goods and is 100% Export Oriented Unit - irregularities committed by the petitioners Held that - There is no manufacturing or other activity being undertaken by the company and with each successive year, accumulated loss swell - net profit of the company is in negative since long - petitioners have no means of fulfilling the pre-deposit condition - they are not seeking any stay against the duty and penalty demands, but requesting for the appeal being heard on merits without any pre-deposit - pre-deposit waived

Issues Involved:
1. Legality of the pre-deposit condition imposed by the Tribunal.
2. Financial hardship of the petitioner.
3. Misrepresentation before the Supreme Court regarding the custody of goods.
4. Tribunal's adherence to Supreme Court's directives.

Detailed Analysis:

1. Legality of the Pre-Deposit Condition Imposed by the Tribunal:
The petitioners challenged the Tribunal's order dated 28-4-2011, which demanded a pre-deposit of Rs. 1.7 crores. The Supreme Court had previously remanded the case to the Tribunal for reconsideration of the pre-deposit condition, emphasizing that the Tribunal must consider undue hardship and the custody of goods by the Revenue. The Tribunal, however, insisted on the pre-deposit, citing the need to protect Revenue's interest and the prima facie evidence of clandestine activities by the petitioners. The High Court found that the Tribunal did not fully adhere to the Supreme Court's directive to consider the petitioner's financial condition and undue hardship.

2. Financial Hardship of the Petitioner:
The petitioners argued that their financial condition made it impossible to meet the pre-deposit requirement. They submitted balance sheets indicating continuous losses and no ongoing manufacturing activities. The Tribunal dismissed these claims, suggesting that the financial condition reflected in statutory documents might not be accurate in cases of clandestine activities. The High Court, upon reviewing the balance sheets, acknowledged the severe financial distress of the petitioners and concluded that insisting on the pre-deposit would render the appeal infructuous.

3. Misrepresentation Before the Supreme Court Regarding the Custody of Goods:
The Tribunal was influenced by the belief that the petitioners had misled the Supreme Court by stating that the goods were still in the custody of the Revenue, which was later found to be inaccurate. The High Court clarified that this misstatement was a joint error by both parties and not a deliberate attempt by the petitioners to mislead the Court. The High Court noted that the Supreme Court's order was based on multiple factors, not solely on the custody of goods.

4. Tribunal's Adherence to Supreme Court's Directives:
The High Court observed that the Tribunal failed to fully comply with the Supreme Court's directives, which required a closer examination of the petitioner's financial condition and the undue hardship that the pre-deposit condition would impose. The High Court emphasized that the Supreme Court had directed the Tribunal to consider the desirability of disposing of the matter expeditiously and to take into account the petitioners' financial hardship.

Conclusion:
The High Court modified the Tribunal's order, waiving the entire pre-deposit requirement and directing the Tribunal to hear the appeal on merits. The High Court clarified that there would be no stay against the duty and penalty demands during the pendency of the appeal, allowing the authorities to recover the same in accordance with the law. The petition was disposed of accordingly.

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