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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 ..... ar, President (Oral)]. - Heard the learned advocate for the applicants and the learned DR for the respondent. By the present applications, the applicants are seeking modification of the order dated 20th April, 2009 passed in stay application Nos. E/484 485 of 2009 essentially on the ground 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 Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now, the Applicant has no manufacturing or any other kind of unit. For the purpose of survival of the family, the active partner of the Applicant is running a very small kariyana shop at his residence. The fact of closure of unit is also evident from the fact that copy of order-in-original and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "11. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard 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 expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. It is necessary to give details regarding the financial capacity of the party. Undisputedly, the applicants have not disclosed any such material along with the original applications as well as the applications for modification. On the contrary, the applicants are fully aware that mere filing of 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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