9911796707
TMI Blog1993 (5) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... does not have any other source of income and for the last two years i.e. the year ending 31-3-1992 and 31-3-1991 the applicant has not filed any returns for income or wealth. It has also been stated in the said affidavit that he is virtually unemployed and finding it difficult to meet both ends due to the collapse of his business. 2. When the stay application came up for hearing on 30-1-1992 Shri K.K. Bhatia, learned JCDR opposing the stay application pointed out that from the records seized by the DRI the applicant had been dealing in big amounts. One of the amounts shown by him related to Rs. 20 lakhs which he had received as payment from the Asian Wire Ropes Ltd. Apart from this it was pointed out by the learned JCDR that there are some other assets shown against him in the show cause notice. The matter was, therefore, adjourned to enable the applicant to meet the points raised by the learned JCDR. 3. The points raised by the learned JCDR have been explained by the applicant in his further additional affidavit dated 10th March, 1992. Sum and substance of this affidavit is that the transactions mentioned in the show cause notice reflect the occupation of the applicant as a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dying the papers and arguing about the financial condition of the applicant. His prayer was acceded to and the matter was adjourned to 19-2-1993. It appears that the matter was again adjourned to 22-2-1993 on the request of JDR. 4. It has been urged by the learned JDR that the reports from the DRI do not indicate much about the financial condition of the applicant. He has not placed the report on the record of the Tribunal. He admitted that the financial condition, as stated by the applicant in his aforesaid affidavits has not been controverted by the department but he urged that the fact remains that the applicant had been dealing in huge transactions before the detection of the case. It is, therefore, possible that the true position of the financial condition has not been reflected by the applicant in his affidavits. In these circumstances, he urged that while he does not object to the waiver of pre-deposit of Rs. 10 lakhs on account of penalty imposed on the applicant he would pray for not staying the recovery thereof by the department inasmuch as the applicant has nothing to lose when he has nothing to pay. He submits that this type of order has been passed in several cases b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 31-3-1989, showed that the sundry creditors owed to applicant Rs. 36,52,322.23/- and as per the balance sheet as on 1-3-1990 the position of sundry creditors showed Rs. 80,05,704.66/-. The balance sheet as on 31-3-1991 also showed the sundry creditors as Rs. 71,81,172.25/-. He had been having very good business these three years. Now suddenly after filing their stay application, he wants us to believe that he has become virtually unemployed and relies on the balance sheet as on 31-12-1991 to show that his sundry creditors is Rs. 1,22,078.25/-. Therefore this conduct of the applicant does not inspire confidence in me to believe his version and his plea that deptt. has not filed their report is sufficient for grant of pre-deposit does not appeal to me. 9. As regards my learned brother s finding that the deptt. would be at liberty to recover the same from the applicant if it is possible for them to do so and that pre-deposit of Rs. 10 lakhs should be waived for the purpose of hearing the appeal in terms of Section 129E is waived , is not the correct proposition in law, in terms of the ruling tendered by Hon ble Kerala High Court in the case of Ashok Rubber Products v. C.C.E. as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-deposit has to be granted till the pendency of the appeal as held by the Member(Technical) or the appellants have to be directed to deposit Rs. 25,000/- and balance of the pre-deposit to be waived and recovery stayed till the pendency of the appeal as held by Member (Judicial)? (2) Whether the department could be at liberty to recover the pre-deposit despite grant of waiver of pre-deposit as held by Member (Technical) or the order dispensing with the requirement of pre-deposit will operate as a stay order against recovery of the amount or balance amount till the disposal of the appeal as held by Member (Judicial) for the reasons stated in his order? Sd/- Sd/- (P.C. Jain) (S.L. Peeran) Dated : 10-3-1993 Member (T) Member (J) 13. [Order per : G.A. Brahma Deva, Member (J), Third Member on Reference agreeing with S.L. Peeran, Member (J)]. - Since there has been difference of opinion in between the Members of the Bench, the following questions have been referred to me by the President to resolve the issues :- (1) Whether the waiver of pre-deposit has to be granted till the pendency of the appeal as held by the Member (Technical) or the appellants have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Authority may dispense with such deposit subject to such conditions as it may deem fit to impose and, accordingly, there is nothing wrong in giving liberty to the Department to recover the amount as imposed by the Member (Technical) in the order. He contended that in the cases referred to by the other side there was no specific condition for the recovery of the amount and, accordingly, it was interpreted that order dispensing with requirement of pre-deposit would operate as the stay against the recovery of the amount. 17. I have considered the rival submissions with reference to the questions and perused the records. I find that the financial condition as stated by the applicant in his affidavit including the true picture of the Balance-Sheet has not been controverted by the Department in spite of number of opportunities were given and, accordingly, the financial hardship on the basis of evidence available on record cannot be doubted. I concur with the view taken by the Member (Technical) in granting the waiver of pre-deposit of entire penalty. As regards stay of the recovery proceedings, it is true that there is no inbuilt proviso in the Section 129E for staying the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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