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TMI Blog2013 (3) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee in seeking an order under Section 35F of the Act taking the benefit of an order and further seeking extension of time and later on turning around and filing writ petitions and appeals under Section 35G of the Act is neither bona fide conduct nor one to be encouraged. Pre-deposit is a rule and dispensation is an exception in terms of Section 35G of the Act and in the present case, while on merits substantial relief had been granted by the Tribunal, it is not as though the assessee was not granted any relief at all. - Writ petition dismissed - Against assessee. - CEA NOS. 41-52 OF 2012 - - - Dated:- 11-1-2013 - D.V. SHYLENDRA KUMAR AND B. MANOHAR, JJ. For the Appellant G. Sridhar. For the Respondent N.R. Bhaska ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso taking into consideration the financial position of the assessee. 4. The Tribunal in terms of the order also granted eight weeks time to comply with the order and it was made a condition that it is subject to the compliance of this direction to deposit the sum of Rs. 5,00,00,000/- (Rs. Five Crores only) waiver of pre-deposit of the penalty imposed on the assessee and the balance amount of the tax liability will operate. 5. The appellant deposited only Rs. 50,00,000/- (Rs. Fifty Lakhs only ) within the permitted time and made Misc. application Nos. 433-444/2012 seeking for extension of time, the Tribunal in terms of its order dated 28.05.2012 acceded to the request of the appellant and granted further eight weeks time therefrom for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in appeals. 8. Submission of Mr. Sridhar, learned counsel for the appellant is that the Tribunal has not at all taken note of the financial position of the assessee and prima facie case of the subject matter of the appeal and therefore, submits that the order warrants interference and also places reliance on the judgment of the Supreme court in the decision of Benara Valves Ltd. v. CCE [2006] 13 SCC 347. At paragraphs 11 and 12 of this judgment is the discussion about the scope of an application under Section 35F of the Act, particularly, the expressions of undue hardship and safeguard the interest of the Revenue which has to be balanced by the Tribunal while passing orders on the application seeking for waiver of pre-deposit. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and appeals under Section 35G of the Act is neither bona fide conduct nor one to be encouraged. 11. In the revenue matters, Supreme Court has time and again said granting stay should be an exception and not a rule. However, under the provisions of the Act, pre-deposit is a rule and dispensation is an exception in terms of Section 35G of the Act and in the present case, while on merits substantial relief had been granted by the Tribunal, it is not as though the assessee was not granted any relief at all. The assessee itself having accepted the order had sought for further time to deposit balance amount of Rs. 4,50,00,000/- which has not been deposited till now. 12. It is in this background, we find no occasion to interfere in a matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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