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TMI Blog2011 (7) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, specific averments had not been made by the petitioner regarding 'financial hardship', in the applications filed for the waiver of pre-deposit of penalty, with supporting evidence, the first respondent had no occasion to give detailed reasons for rejecting the request of the petitioner - Decided against the assessee - 9830 of 2011 - - - Dated:- 15-7-2011 - M. Jaichandren, J S. Murugappan for the Appellant S. Udayakumar (CGSC) for the Respondent JUDGEMENT This writ petition has been filed challenging the impugned order of the first respondent, in Order No.249-343/11, dated 14.2.2011, and to direct the first respondent to hear the appeal filed by the petitioner, on merits, without insisting on the petitioner making a pre-deposit, as per Section 129 E of the Customs Act, 1962. 2. It has been stated that the petitioner firm is a Custom House Agency, carrying on its activities, with a licence granted to it, under the Customs House Agent's Licencing Regulations, 2004, to transact the business relating to the import and export of goods, carried on under the provisions of the Customs Act, 1962. 3. In the course of its business the petitioner firm had fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner had not been recorded by the first respondent in its impugned order, dated 14.2.2011. There is nothing in the impugned order to show that there was application of mind on the contentions raised on behalf of the petitioner. After stating the facts the first respondent had passed the impugned order, without considering the contentions raised on behalf of the petitioner. There are no findings against the petitioner in the impugned order of the first respondent, dated 14.2.2011. As such, the impugned order of the first respondent, dated 14.2.2011, is liable to be set aside and the matter is to be remitted back to the first respondent for passing an appropriate order, on merits, on the request of the petitioner, for the waiver of the pre-deposit of duty draw back and penalty, by giving sufficient reasons. 8. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions: 8.1. In Amitava Saha vs. CESTAT [(2007 (215) E.L.T. 173 (Cal.)], it had been held as follows: "26. Mr.Boss submission that financial position need not be considered unless there was a strong prima facie case on merits or at least an arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India [(2010 (250) E.L.T. 484 (Del.)], it had been held as follows: "19. From various judicial pronouncements on this issue, the position, which emerges is that the Tribunal while considering any application for waiver of deposit is to take into account firstly the existence of a prima facie case. In case, it is found that a party has a very strong prima facie case, and/or where the errors in the impugned order are writ large on the records, in such a case, it would be competent for the Court in the exercise of its jurisdiction to grant waiver of pre deposit since in such a case requiring a pre-deposit itself would amount to "undue hardship". There is no denying of the fact that while dealing with the application for stay it is neither desirable nor proper for the Tribunal or any any other authority to embark upon a detailed inquiry to find out whether the stand of the appellant before it is correct or not because expression of any opinion on merits at that juncture, without full-fledged hearing and consideration of entire material, is likely to cause prejudice to either side. But at the same time, the authority concerned is required to consider whether with referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction by the Appellate Authority. In this case it is manifest that the order of the Tribunal was passed honestly, bona fide and having regard to the plea of "undue hardship' as canvassed by the appellant. There was no error of jurisdiction or misdirection." 11.2 In Benara Valves Ltd. and others vs. Commissioner of Central Excise and another (2006 (13) SCC 347), it had been held as follows: "In such matters though discretion is available, the same has to be exercised judicially. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no legs to stand on, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because the Supreme Court has indicated the principles that does not give a license to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsels appearing on behalf of the petitioner, as well as the second respondent, and on a perusal of the records available, and on considering the decisions cited supra, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner in the present writ petition. 13. Even if it could be accepted that the petitioner had made certain averments regarding its financial difficulties, it would not be entitled to the relief of waiver of pre-deposit of penalty, as such averments had not been substantiated with sufficient evidence. The order of the first respondent cannot be held to be erroneous and invalid only on the ground that it does not give sufficient reasons for denying the request of the petitioner, for the waiver of pre-deposit of penalty, as the petitioner had not raised specific grounds, with sufficient evidence, to show that the ingredients enshrined in Section 129 E of the Customs Act, 1962, had been satisfied. 14. Since, specific averments had not been made by the petitioner regarding 'financial hardship', in the applications filed for the waiver of pre-deposit of penalty, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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