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TMI Blog2010 (1) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the issue of financial hardship to the applicants was not properly considered while deciding the stay applications. 2. The learned advocate for the applicants submitted that, the order dated 20th April, 2009 does not disclose proper consideration of the point relating to the financial hardship to the applicants as was pleaded and contended by the applicants and which is apparent from the records in relation to the order passed by the Commissioner (Appeals) as well as from the memo of appeal filed before the Tribunal. He further submitted that the decision of the Apex Court in the matter of Commissioner of Central Excise, Chandigarh v. Smithkline Beecham Co. Health C. Ltd., reported in 2003 (157) E.L.T. 497 (S.C.), has no relevancy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order-in-appeal has been served upon the Appellant by hand through Range Office. The fact of closure of unit and running of small kariyana shop by the partner was brought in the knowledge of Ld. Commissioner (A) but he has not even taken note of the said fact." 5. The contents of para 2 of the applications dated 21st August, 2008 and the relevant portion of which has been reproduced in the applications for modification reads thus : "That our unit was a partnership concern. Due to heavy losses and heart attack to the undersigned, the unit was closed in the year 2004. The premises was on lease and plant and machinery have already been disposed off. The undersigned at present is earning his livelihood by running small karyana shop. The und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35(F). One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (AIR 1994 SC 923) that under Indian conditions expression "Undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be 'undu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applications for modification is not sufficient to establish their claim. In the original applications the applicants had clearly stated that "these facts may got be verified through range office". In other words, the applicants knew, when the applications for stay were filed, that their claim regarding the financial hardship was required to be established by proper verification of their claim regarding hardship. The applicants had not taken any pain to place on record any material in support of their assertion regarding financial hardship and on the contrary they had left it to the Department to verify the same. The applications for modification also do not disclose any fact in support of their claim. Rather the applicants have reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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