9911796707
TMI Blog2011 (12) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of conditions to safeguard the interest of Revenue have to be kept in view. Undue hardship - held that:- As held by the Apex Court in Benara Valves Ltd case (2006 -TMI - 866 - SUPREME COURT OF INDIA), the undue hardship to the person is a relevant factor to be taken into consideration under Section 35 F of the Act. Therefore, order of Tribunal is set aside and Tribunal is directed to consider Annexure P-16, stay application, referring to all relevant factors, referred to above, and pass fresh orders. – Decided in favor of petitioner. - CWP No. 10703 of 2011-A. - - - Dated:- 21-12-2011 - Kurian Joseph, Rajiv Sharma, JJ. Joseph Vellapally, Sr. Adv., with Tarun Gulati, Shashi Mathews and Sanjeev Bhushan, Adv., for the Appellant Rajiv Jiwan, Central Govt. Counsel for the Respondent JUDGEMENT Kurian Joseph: Consistency in rendering judgments or passing interim orders is an integral element of legal propriety and judicial discipline. Judicial discipline is of the basis of integrity of the Institution. Even a stray aberration in such foundational values, will affect the image of the Institution as fair and impartial. Inconsistent orders pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 35 F of the Act in the case of M/S Vasantham Enterprises. Incidentally, it is also worth noting that one of the Members of the Tribunal which passed Annexure P-18, order dated 7.9.2011, was also Member in the Bench, hearing the application under Section 35 F, filed by M/S Vasantham Enterprises. The Tribunal by order dated 22.9.2011, dispensed with the condition of predeposit of duty and penalty and the stay petition was allowed un-conditionally. It was a case where duty around rupees thirty seven crores was imposed. The petitioner moved Annexure P-20, application seeking recall of order dated 7.9.2011. That application was rejected, as per Annexure P-23, order, wherein it has been stated that it was the discretion of the Tribunal to pass interim orders depending on the facts and circumstances of each case. It was also observed that it was not a fit case for exercise of power under Rule 41 of the CESTAT (Procedure), Rules, 1982. Those two orders, Annexure P-18 and P-23 are under challenge alongwith the dependent orders, in this Writ Petition. 3. Heard, Sh. Joseph Vellapally, learned senior counsel for the petitioners and Sh. Rajiv Jiwan, Central Government Counsel, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s back to the tribunal for reconsideration of the matter having regard to the observations made by this Court earlier Judicial orders must be passed by the Tribunal with a greater degree of circumspection and application of mind. Whim and caprice are alien to the judicial process. Consistency, based on judicial precedents should be the norm." 6. The High Court of Kerala in Joy versus Regional Transport Authority, reported in 1999 (105) E.L.T. 275 (Ker.), has been sharpen and stronger while holding that: "3. Judicial discipline demands consistency in rendering judgments. A judicial Officer may hold different views on various aspects. A Judicial officer may err and pass contradictory orders inadvertently. But once it is brought to the knowledge of the Judicial Officer, he is duty bound to keep track of consistency. Inconsistent orders passed by a judicial officer almost in the same fact situation and that too on the same day, would give rise to complaint of discriminatory treatment, which will undermine the people's faith in judicial system and the rule of law. It will cause resentment and anguish and make an imprint in the mind of the litigant that he has been discriminated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it has been held at paragraphs 8, 11, 12, 13, 14 and 15, as follows: "8. 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 leg to stand, it would be undesirable to require the assessee to pay full or substantive part of demand. Petitions for stay should not be disposed of in a routine matter 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 this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given. 11. Two significant expression used in the provisions are "undue hardship to such person" and "safeguard t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
