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TMI Blog1991 (12) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ti had argued that the show cause notice was issued on 17th November, 1987 and it pertains to the period 1st November, 1982 to 31st March, 1986 and the applicant had challenged the show cause notice issued by the revenue authorities before the Hon ble Gujarat High Court and was admitted vide writ petition No. 1758 of 1988 and notice was given to the other side on 13th April, 1988 and on 22nd September, 1988 after hearing the counsel for the parties, the High Court had passed an order and had granted the stay, but it was further ordered that the proceedings for adjudication shall continue and thereafter the adjudication order was passed by the Collector on 17th October, 1989 and on 21st February, 1990 an amended petition was filed which came up for hearing and on 21st February, 1990 the High Court had granted stay with certain conditions and the applicant had duly fulfilled the conditions as ordered by the Hon ble High Court and on 10th September, 1991 when it was brought to the notice of the Hon ble High Court that an appeal is pending before the Tribunal, the Hon ble High Court disposed of the writ petition and stayed the recovery of the demand till 30th October, 1991 and had furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit of Shri K.T. Kerala Verma, Managing Director of the applicant company where the financial position of the applicants has been stated and a copy of the same has also been given to the learned Departmental Representative. Shri Sibal fairly stated for the year, ending 31st March, 1991 there is a profit for the first time to the tune of Rs. 32,58,000 and in case the applicants are desired to pay the duty and penalty amounts, it will amount to undue hardship. He pleaded for dispensing with the predeposit ofthesame and grant of stay. Shri Prabhat Kumar, the learned JDR who has appeared on behalf of the respondent, stated that the facts of the present case are very different and the detailed facts have not been brought to the Notice of the Bench by the learned Senior Advocate. He stated that there is suppression of facts on the part of the applicants. They had been under-valuing these compressors by five times below the cost. He drew the attention of the Bench to internal page 4 of the impugned order and he also referred to the show cause notice which appears from pages 41 to 59 of the paper book. Shri Prabhat Kumar, the learned JDR pleaded that inter-office memo and price lists wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was a suppression and on the same time opined that there was no conclusive proof of mala fides on the part of the appellants. It is also stated that the circumstances did not establish mala fides on the part of the appellants with intent to evade duty. A close scrutiny of this finding indicates that the Board was not satisfied that there was a deliberate or conscious omission by the appellants. When such a conclusion has been reached the reasonable inference would be that there could be no suppression calling for the invocation of the longer period of limitation. In this case it is proved that the appellants have not filed any classification list or other documents but it is noticed from the order of the Board that a letter had been written by the appellants even on 24-12-1979 which ruled out the possibility of any intent to evade duty. The penalty imposed against the appellant has been set aside on the ground of lack of evidence that it was with the intent to evade duty. With these findings, we are unable to support the earlier conclusion of the Board that there was a. deliberate suppression of the facts. Since the two findings appear to be contradictory, we held that the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at time it would be open to the petitioners to move the Tribunal for expeditious hearing of stay application as well as appeal. The Tribunal is directed to dispose of the appeal preferably within a period of four months from today. Rule discharged with an order as to costs." We have considered the prima facie merits of the case. It is not disputed that the applicants had been filing the classification lists as well as price lists from time to time and these were duly approved. It is also not disputed that a show cause notice on similar facts and circumstances was issued on 30th July, 1976 and the same was dropped vide order dated 26th March, 1983 and the revenue authorities letter dated 29th November, 1976 which appears on page 131 of the paper book. A simple perusal of tine same clearly shows that the pricing pattern of the applicants was well within the knowledge of the department. Today we are hearing only the stay application. The matter is sub-judice. Further observations on merits as well as limitation will not be proper. Hon ble Delhi High Court in the case of Uptron Powertronics v. Collector of Central Excise, Meerut reported in 1987 (28) E.L.T. 61 had observed that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner that the expression undue hardship occurring in the proviso to Section 35F of the Central Excises and Salt Act, 1944, would include consideration, inter alia, of the aspect of liquidity possessed by the assessee. We are not inclined to take the view that the impugned order gives any indication that aspect has been completely ignored as was contended by counsel. With these observations the special leave petition is dismissed. 5. Keeping in view the totality of the facts and circumstances of the case, we are of the view that if the applicants are desired to deposit the duty amount of Rs. 1,55,22,150.60 and penalty of Rs. 40,00,000.00, it will amount to undue hardship. We dispense with the predeposit of the same on the condition that the applicants shall continue the security of immovable property already, furnished by them. We are told that the earlier offer has been accepted by the department. During the course of arguments, Shri Kapil Sibal, the learned Senior Advocate had offered that in the event of the applicants losing the appeal, the applicants are prepared to pay interest at the rate of 12% as already ordered by the High Court on 21st February, 1990. Shri Prab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se unless there is a provision in a statute or custom or agreement to sanction the grant of the same. In the instant case there is no provision under the Customs Act for the grant of interest on the delayed payment of the refund. Therefore, the appellant s prayer for the grant of interest is not acceptable. As such, there is no justification for invoking the inherent powers of the Tribunal for paying interest nor any justification for the grant of costs. In the matter before us, there is an offer from the learned Senior Advocate who has appeared on behalf of the applicant for payment of interest at the rate of 12% in the event of their losing the appeal. While exercising our inherent powers in view of the decision of the Hon ble Supreme Court in the case of Income Tax Officer, Cannanore v. M.K. Mohammed Kunhi reported in AIR 1969 S.C. 430, we accept the offer of the learned Senior Advocate as to the payment of interest at the rate of 12% in the event of their losing the appeal. 6. In the result, the stay application is allowed and disposed of accordingly. 7. Hon ble Gujarat High Court had expressed the view for the disposal of the appeal preferably within a period of four mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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