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TMI Blog2014 (5) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... e-deposit requirement. The Tribunal to safeguard the interest of Revenue having imposed certain conditions which cannot be stated to be so onerous that the petitioners cannot weigh them, granted waiver of the pre-deposit. - However, time period to make pre deposit is extended - Decided partly in favour of assessee. - Special Civil Application Nos. 16100-16104 of 2012 - - - Dated:- 5-12-2012 - Akil Kureshi and Sonia Gokani, JJ. Shri Uday Joshi for M/s. Trivedi Gupta and Paresh M. Dave, Advocates, for the Petitioner. ORDER These petitions arise out of a common order of Customs, Excise and Service Tax Appellate Tribunal ( the Tribunal , for short) dated 11-9-2012 [2013 (288) E.L.T. 457 (Tri.-Ahmd.)]. Petitioner of Special Civil Application Nos. 16100/2012, 16101/2012, 16102/2012, 16103/2012 and 16104/2012 is a Company registered under the Companies Act, 1956 and is engaged in activity of selling and exporting air-coolers under the brand name Symphony . Petitioner of Special Civil Application No. 16230/2012 is a Company called M/s. Polyset Plastics Private Limited and is engaged in the activity of manufacturing and moulding of various articles of plastic. Symphony ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto separate Orders-in-Original, they had filed separate appeals before the Tribunal. We therefore, have multiple petitions filed by Symphony Limited before us. Since facts are identical in all such petitions, we do not find it necessary to record them separately. Insofar as M/s. Polyset Plastics Private Limited is concerned, it faced only one show cause notice leading to single order and hence singular petition by such Company. 4. Learned counsel Shri Uday Joshi for Symphony Limited vehemently contended that the Tribunal committed a gross error in insisting 20% of the penalty amount by way of pre-deposit. He submitted that under Rule 26 of the Central Excise Rules, no penalty could have been imposed on an entity which is not a natural person. He further submitted that at the very outset the case of the Department was self-contradictory and that no penalty could have been imposed against Symphony Limited. Counsel did not press the prayer for declaration that Rule 26 of the Central Excise Rules was unconstitutional. He, however, clarified that such stand is being given up at this stage. 5. Learned counsel Shri Paresh Dave for M/s. Polyset Plastics Private Limited contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (S.C.) = 2009 (13) S.T.R. 81 (S.C.), the Supreme Court observed as under : 9. The Tribunal has highlighted the relevant aspects while rejecting the prayer for dispensation of pre-deposit. The three aspects to be focused while dealing with such applications are : (a) prima facie case, (b) balance of convenience, and (c) irreparable loss. The Tribunal categorically found that these factors were established by the respondents. Even when the Tribunal decides to grant full or partial stay it has to impose such conditions as may be necessary to safeguard the interest of revenue. This is an imperative requirement under Section 129E of the Act. ... In case of Benara Valves Limited and Others v. Commissioner of Central Excise and Another, reported in (2006) 13 SCC 347 = 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.), the Supreme Court observed as under : 11. Two significant expressions used in the provisions are undue hardship to such person and safeguard the interests of the Revenue . Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also recall that in addition to confirmation of duty demanded in the show cause notice, the Commissioner had levied interest and further imposed penalty against M/s. Polyset Plastics Private Limited under Section 11AC of the Central Excise Act, 1944 and Rule 26 of the Central Excise Rules. By necessary implication, the Tribunal waived entire pre-deposit of the penalty against M/s. Polyset Plastics Private Limited and demanded only 10% of the duty confirmed against such Company. In case of such Company, the pre-deposit condition would work out to be a mere 2 to 3% on the total amount payable under the Order-in-Original. 10. Likewise, against Symphony Limited, the Tribunal insisted on deposit of 20% of the penalty levied by the Commissioner in his Order-in-Original. 11. The Tribunal while doing so, gave sufficient consideration to the submissions made by the parties and also considered various aspects by way of prima facie consideration. The Tribunal found some argueable issues in favour of the appellants but could not persuade itself to waive the entire pre-deposit. Insofar as M/s. Polyset Plastics Private Limited is concerned, the Tribunal took a further lenient view by makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 (28) S.T.R. 195 (S.C.), the Apex Court observed as under : 26. Notwithstanding the above conclusion, we have considered the submission of Shri Ranjit Kumar that the appellants are facing huge financial crises and the Appellate Tribunal committed serious error by not entertaining their prayer to dispense with the requirement of deposit of the amount of penalty in its entirety, but have not felt convinced. In our considered view, the appellants miserably failed to make out a case, which could justify an order by the Appellate Tribunal to relieve them of the statutory obligation to deposit the amount of penalty. The appellants have the exclusive knowledge of their financial condition/status and it was their duty to candidly disclose all their assets, movable and immovable including those in respect of which orders of attachment may have been passed by the judicial and quasi judicial forums. However, instead of coming clean, they tried to paint a gloomy picture about their financial position, which the Appellate Tribunal rightly refused to accept. If what was stated in the applications filed by the appellants and affidavit dated 10-10-2008 is correct, then the appellants must b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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