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TMI Blog2013 (4) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... titute undue hardship to the assessee. The authority is entitled to impose conditions to secure the interests of the revenue. In the circumstances, the petition ought to be allowed by setting aside the impugned order of the Commissioner of Customs (Appeals) dated 12 February 2013 and by remitting the proceedings back to the authority for a fresh decision on the application for waiver of pre-deposit. - Writ Petition No.2169 of 2013 - - - Dated:- 4-4-2013 - D Y Chandrachud And A A Sayed, JJ. For the Appellant : Mr V B Singh with Mr Satish S Sharma For the Respondent : Mr Pradeep S Jetly JUDGEMENT:- 1. Rule; with the consent of Counsel for the parties returnable forthwith. With the consent of Counsel and at their request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular of the CBEC dated 30 March 1999 which states that the grant of a personal hearing on a petition for stay would be more of an exception than the rule and that while there would be no irregularity if a stay petition is disposed of without a personal hearing, nonetheless a reasoned order should be passed in an objective manner. After adverting to the provisions of Section 129E, the Commissioner of Customs (Appeals) has indicated only the following reasons in support of the direction for the deposit of an amount of Rs.7.50 lakhs; I find that the instance case is prima facie case made out in favor of the revenue. Therefore, considering the balance of convenience, I order for pre-deposit of a part of the penalty amount as under befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted with the discretion to dispense with such deposit unconditionally or on conditions, then it has to apply its mind on that question like a quasi-judicial authority taking into consideration all the facts and circumstances of the case including the undue hardship which has been pointed out on behalf of the appellant. In that proviso the two expressions 'opinion' and 'discretion' both have been used. In view of the settled position that whenever a statutory authority has to form an opinion on a question, it does not mean that it has to be formed in a subjective or casual manner. That opinion must be formed objectively on relevant considerations. Same is the position in respect of the exercise of discretion. The framers of the Act require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) shall give an opportunity to the appellant to be heard, if he so desires. This is at the stage of the hearing of the appeal. Before that stage arrives, Section 129E stipulates a requirement of deposit of the duty and interest or penalty levied under the Act pending an appeal. The proviso confers upon the Commissioner of Appeals, or as the case may be, upon the Tribunal to grant a waiver of the deposit of duty and interest or penalty on grounds of undue hardship subject to such conditions, as may be imposed to safeguard the interests of the revenue. 6. The impugned decision of the Commissioner of Customs (Appeals) has relied upon a circular of the CBEC dated 30 March 1999. That circular, it would appear, was quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner has proceeded to dispose of the stay application simply with a bald observation that a prima facie case has been made out in favour of the revenue and, that considering the balance of convenience a pre-deposit of a part of the penalty was required to be made. The judgment of the Supreme Court in Jesus Sales Corporation (supra), while holding that an order on an application for waiver of pre-deposit would not be invalid merely on the ground that no personal hearing had been afforded, nonetheless, holds that it is incumbent upon a quasi-judicial authority which is vested with the discretion to grant a waiver of deposit to take an objective decision after considering all relevant facts and circumstances having a bearing on the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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