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TMI Blog1994 (3) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... heard together which will save inconvenience to him as well as to the parties. 2. Shri Prabhat Kumar, learned Senior Departmental Representative who is present on behalf of the respondent fairly agrees with the request of the learned Advocate for hearing of all the stay applications today and as such he has got no objection. 3. After hearing both the sides, we accept the request of the learned Advocate to which learned SDR does not object, and accordingly we proceed to hear all the four stay applications today. 4. Learned Advocate pleaded that the appellants M/s. Banswara Fabrics Ltd. imported 150 metric tonnes polyester filament yarn under OGL in 1982 and the goods were placed in the Warehouse. At the time of importation, the rate of duty was 200% and thereafter by Notification No. 248 of 1982-Cus., dated 23-11-1982 additional duty of Rs. 15 per kg. was levied. (a) Learned Advocate pleaded that the imposition of this additional duty, it was not a viable business proposition to use polyester filament yarn for our manufacture, and sell the same in the domestic market. Accordingly after market study, the appellants decided to export the fabrics made out of the imported raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 240 of the paper book. He pleaded that the appellants unit is a loss-running unit. He argued that the total capital is about Rs. 15 lakhs whereas the total loss brought forward is to the tune of Rs. 5,74,54,201/-- as on 31-3-1993. He argued that the loss for the year ending 31-3-1993 is at Rs. 54,90,901/-. He pleaded that in case the appellants company is desired to deposit the amount it will amount to undue hardship. (g) Coming to the imposition of penalties on M/s. R.L. Toshniwal, Murarilal Dalmia and Sh. B L. Sharma, the learned advocate pleaded that the total capital of M/s. R.L. Toshniwal as per the balance sheet for the year ending 31-3-1993 is at Rs. 16,59,206.30. Out of this, his investment is to the tune of Rs. 12/61,455.00. He pleaded that the liquidity position of the applicant is not good and as such, he is not in a position to deposit Rs. 10 lakhs. As per the balance sheet of M.L. Dalmia as on 31-3-1993, the learned advocate has pleaded that his total capital is at Rs. 16,02,61042. Out of this, about Rs. 14 lakhs is his investment and the remaining is from borrowed capital. About Shri B.L. Sharma, the ld. Advocate argued that he is an employee earning about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4,000/- and has to support his family, he is not in a position to deposit any amount. 7. Shri Prabhat Kumar learned SDR, in reply to the offer made by the learned advocate stated that he has got no objection for the acceptance of the offer in view of the facts and circumstances stated by the learned advocate, 8. We have heard both the sides and have gone through the facts and circumstances of the case. It is an admitted position in the present matter that the goods imported by the appellants against the advance licence were sold by the appellants, The goods were actually utilized by the appellants in their own factory. The appellants had made an export obligation and as a bona fide tax payer. Ld. SDR had cited the decision of Maharashtra Tubes in the Stay Older Nos. 15-17/94-A, dt. 25-1-1994. We are very much aware of the said decision. In the said matter, the goods were raw materials imported by the appellants and sold in the market and the sale proceeds were not credited in their account books whereas the facts and circumstances of the present case are different. Penalty at Rs. 30 lakhs has been imposed on the appellants company and Rs. 10 lakhs each on M/s. R.L. Toshniwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ience will considerably depend on the liquidity position of the petitioner company. Before proceeding further, we think it relevant to cite the following observations of the Supreme Court made in Application No. 332/84 in Appeal No. 693/84 (M/s. Spencers Co. Ltd. Madras v. Collector of Central Excise) :- We are in agreement with the contention of the counsel for the petitioner 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 con tended by counsel. With these observations, the special leave petition is dismissed. Keeping in view the liquidity position of the appellants, we are of the view that if the appellants are desired to deposit Rs. 30 lakhs, it will amount to undue hardship In these circumstances, we accept the offer made by the Ld advocate for depositing Rs. 2 lakhs (two lakhs) in cash to which the learned SDR does not object. Accordingly, we accept the offer and order to deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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