1986 (2) TMI 180 - AT - Customs

Summary

Issues Involved:
1. Modification of Order No. 691/A dated 25.9.1985.
2. Financial hardship and inability to comply with the cash deposit requirement.
3. Validity and coexistence of bond and cash deposit.
4. Compliance with Section 129E of the Customs Act, 1962.
5. Consideration of undue hardship and liquidity.

Issue-wise Analysis:

1. Modification of Order No. 691/A dated 25.9.1985:
The applicant sought to modify the Tribunal's order to reduce the cash deposit amount, allow bond guarantees instead, and extend the compliance time. The Tribunal initially directed a deposit of Rs. 78,538/- and a bank guarantee for the balance within eight weeks. The applicant argued that this order should be modified due to their financial situation.

2. Financial hardship and inability to comply with the cash deposit requirement:
The applicant presented balance sheets and bank certificates showing insufficient funds and overdrawn accounts. They claimed that the financial position had worsened due to recurring expenses like wages and bonuses during Diwali. However, the Tribunal noted that the applicant had not disclosed all bank accounts initially, including an account with American Express International Banking Corporation, which was revealed only later. The Tribunal found that the applicant had not dealt fairly by withholding full financial information.

3. Validity and coexistence of bond and cash deposit:
The applicant argued that the bond for Rs. 78,538/- should suffice and that a cash deposit should not be required. The Tribunal clarified that the bond and cash deposit cannot coexist, and the earlier order directed only the continuance of the bond for the redemption fine, not for the differential duty. The Tribunal found no grounds to modify the order on this basis.

4. Compliance with Section 129E of the Customs Act, 1962:
Section 129E mandates a deposit of the duty or penalty as a condition precedent for hearing an appeal, which can be dispensed with in cases of undue hardship. The Tribunal emphasized that the requirement of a deposit is related to the maintainability of the appeal. The Tribunal must independently decide on dispensing with the deposit based on undue hardship, untrammeled by any other quasi-judicial authority's decision.

5. Consideration of undue hardship and liquidity:
The Tribunal examined the applicant's financial documents and found that the applicant still had significant investments and advances, indicating liquidity. The Tribunal referenced several judgments, including the Supreme Court's decision in Spencer & Co. Ltd., to highlight that liquidity refers to the ability to convert assets into cash. The Tribunal concluded that the terms laid down for dispensing with the deposit did not call for modification. The Tribunal also noted that the applicant's situation could have been anticipated earlier, and the application seemed contrived to seek modification post-facto.

Conclusion:
The Tribunal found no reason to modify its earlier order and extended the compliance time by three weeks. The application was dismissed as totally misconceived.