9911796707
TMI Blog2013 (10) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1944 (hereinafter referred to as the 'Act') by directing the appellant to deposit 50% of the amount claimed by the revenue. Counsel for the appellant submits that as the CESTAT has recorded a finding that the appellant has an arguable prima-facie case, it should have stayed the entire liability instead of granting stay with respect to 50% of the liability. It is contended that power under Section 35F of the Act, requires the CESTAT to consider merits of the case in the context of "undue hardship" and is, therefore, not prohibited from staying the entire amount. The finding that the appellant has a prima-facie case, is sufficient to stay the entire recovery and not merely 50% as allowed by the CESTAT. It is argued that the impugned dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration of the entire record, recorded findings against the appellant. The mere fact that the CESTAT has admitted the appeal, does not entitle the appellant to claim that the duty etc. should be stayed. The CESTAT has in the exercise of bonafide discretion granted relief to the appellant by directing deposit of 50% of the amount claimed by the revenue, which in the considered opinion of the revenue, should not have been granted but as the revenue has not filed any appeal against this order and the order does not suffer from any error of jurisdiction or of law, the appeal may be dismissed without any modification in the impugned order. We have heard counsel for the parties, perused the impugned order as well as the orders passed by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing." A perusal of Section 35F of the Act, reveals that a person desirous of appealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... win requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35(F). One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S.Vasudeva V. State of Karnataka and Ors. (AIR 1994 SC 923) that under Indian conditions expression "undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we would like to reiterate an oft repeated principle that an appellate forum while considering legality of an order is confined to ascertaining errors of jurisdiction, a perverse or arbitrary exercise of power and whether any error has led to a miscarriage of justice. An appellate forum cannot where the opinion recorded does not suffer from the aforesaid defects, impose its own perception of the merits of the case whatever be the nature of "undue hardship". The appellant has not pleaded any financial hardship or financial distress in support of its plea of "undue hardship" and has mainly confined its pleadings to the merits of the demand raised by the revenue. A perusal of the orders passed by the Assessing Officer and the Appellate Author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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