9911796707
TMI Blog1989 (8) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ank guarantee be exempted till the hearing and final disposal of the appeal before this Hon ble Tribunal. And Pass such other order or orders as your honour may deem fit and proper in the circumstances of the case." 2. This prayer has a chequered history. By the impugned order the Collector of Central Excise, Pune after his usual adjudication has demanded duty amounting to Rs. 38,87,715.87 from the applicants and also imposed a penalty of Rs. 20 lakhs. The applicants have filed their appeal in the Tribunal and alongwith the appeal the applicants also filed their application for the waiver of the mandatory requirement of the pre-deposit of the amount of duty demanded and penalty levied in terms of proviso to Section 35-F of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25-8-1988. In that Writ Petition this Tribunal was also respondent and the Court in its Order dated 24-11-1988 also directed that the said order of the Court be punctually observed and carried into execution by all concerned. Still undeterred with the consequences, the applicants did not comply with the said stay order of the Tribunal within the extended period given by the Bombay High Court. Instead, they moved an application No. E/Misc./74/89-C in the Tribunal for modification of the said stay order dated 25-8-1988. After hearing both the parties the said application was dismissed by the Tribunal vide its Misc. Order No. 45/1989-C dated 20-3-1989 and a notice was issued to the applicants to show cause as to why their appeal be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that after the passing of the said order dated 11-4-1989 by the Hon ble Supreme Court the applicants have deposited Rs. 75,000/- and as the applicants have a prima facie case and their liquidity position is not sound, the requirement to deposit the balance amount of duty of Rs. 13 lakhs as directed by the Tribunal and also to furnish the Bank Guarantee for the balance amount of duty be dispensed with in terms of proviso to Section 35-F of the Act and that the applicants have moved the present application as directed by the Hon ble Supreme Court. 6. In reply Shri A.S. Sunder Rajan, learned JDR submitted that the present application is not maintainable as the Tribunal after considering the prima facie merits of the case and the liquidit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y according to him this Tribunal cannot entertain this fresh application under the law as the earlier order passed by it has became final on confirmation of the Order by the Bombay High Court on 24-11-1988. 7. We have considered the submissions and find much force in the contention raised by the learned JDR Shri Sunder Rajan. From the Order dated 11-4-1989 passed by the Hon ble Supreme Court as extracted above, it is clear that the Court has directed us to consider the application, if made, in accordance with the law. In our earlier Misc. Order No. 45/1989-C dated 20-3-1989 against which the said Special Leave Petition was filed (wrongly describing our Order No. E/42/89-C instead of 45/1989-C in the said SLP) the Bench clearly held that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (which we cannot ignore lest it may amount to contempt of Court), we find no reason to grant the prayer. The submission of the learned Counsel for the applicants that the applicants have a good prima facie case and, therefore, the requirement of pre-deposit of the amount of duty and penalty be waived is substantially nothing but a repetition of the arguments which were made before the Bench while passing its stay order dated 25-8-1988 and unsuccessfully repeated before the Bombay High Court in the Writ Petition No. 5471 of 1988. Likewise the contention of the learned Counsel for the applicants that the liquidity position of the applicants is not sound is nothing, but in a nutshell the repetition of the earlier arguments made before the Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on he cited the case of Jayashree Insulators Limited v. Collector of Central Excise, 1987 (28) E.L.T. 279 to convince us that whenever there is a strong prima facie case the requirement of pre-deposit of duty demanded and penalty levied, if any, be waived. 9. We have considered the submissions and find that the provisional balance sheet ending 30-6-1988 was placed before the Bench and also before the Bombay High Court and after considering this balance sheet the said stay order dated 25-8-1988 was passed by the Bench and confirmed by the Bombay High Court on 24-11-1988. From the provisional balance sheet ending 31-3-1989 we find that the financial position of the applicants company has slightly improved from its earlier position as reflec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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