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TMI Blog2014 (7) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... SUPREME Court] cases without analysing factual scenario involved in a particular case. For a hardship to be undue it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. - The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. We find much force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant. - appellant is granted waiver of the entire amount ordered to be paid as pre-deposit by the Tribunal. - stay granted - decided in favor of assessee. - C.M.A. NO. 3297 OF 2013 AND M.P. NO. 1 OF 2013 - - - Dated:- 11-7-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. M. A. Kalam For the Respondent : Mr. S. Haja Mohideen Gisthi, ACGSC JUDGMENT (Delivered by R. Sudhakar, J.) The present appeal has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decision of the Supreme Court in C.C. (General), New Delhi Vs - Gujarat Prestorp Electronics Ltd. (2005 (186) ELT 532 (SC))should be considered for the purpose of deciding the case. It was pointed out by the counsel for the appellant that the Commissioner (Appeals), at the time of taking up the appeal for hearing on merits, has clearly held that there was a prima facie case for waiver of pre-deposit. Thereafter, an order was passed by the Original Authority, viz., the Deputy Commissioner on 20.9.07, confirming the duty and penalty as demanded in the show cause notice. 5. As against the said order, an appeal was filed to the Commissioner (Appeals), who confirmed the order of the Deputy Commissioner vide order dated 29.6.09 against which an appeal was filed on 22.10.09 to the Tribunal along with an application for waiver of pre-deposit. The Tribunal, by order dated 11.12.12, passed in Misc. Order No.895,896 of 2012 passed impugned order No.828-829 of 2012. The Tribunal, while holding that there was no prima facie case in favour of the assessee, was of the view that there is a dispute on classification of goods under Customs Tariff Heading 49 and came to the conclusion that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the goods are not subject to any duty and the interpretation sought for by the department is prima facie not maintainable, reliance is placed on the decision of the Supreme Court in Gujarat Prestorp Electronics Ltd.'s case (supra), where the very same chapter heading 49 was considered by the Supreme Court, and taking note of the exemption notifications issued from time to time in relation to chapter heading 49, held that Heading 49.01 deals with printed books, brochures, leaflets and similar printed matter, whether or not in single sheets, whereas Heading 49.11 deals with other printed matter, including printed pictures and photographs. The Supreme Court clearly held that specific or basic heading 49.01 should be the criteria for determining the nature of goods. For better clarity, it is useful to refer to the following paragraphs of the abovesaid judgment, which are as hereunder:- 50. In our opinion, the counsel is right in submitting that when the expression book is not defined in the Act, natural and ordinary meaning of the said expression must be kept in view. According to him, nowhere it is provided that all the nine characteristics or ingredients as highlighted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io in Parasrampuria Synthetics Ltd. in the light of the observations made by us in this judgment and decide the issue raised in the instant case. 54. The matter could be looked at from another angle also. As noted earlier, HSN has dealt with the point and as per Explanatory Note, it would fall under Chapter Heading 49.01. If it is so, it would not be covered by sub-heading 4911.99. 55. In this connection, we may refer to a three-Judge Bench decision of this Court in Collector of Central Excise, Shillong v. Wood Craft Products Ltd. (1995) 3 SCC 454 : (1995) 77 ELT 23 (SC). The Court, in that case, considered the question whether plywood was classifiable under sub-heading 4408.90 or sub-heading 4410.90? HSN Explanatory Notes was considered by this Court and it was observed: We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central excise tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 20,00,000/- (Rupees Twenty Lakhs only) as against the duty demanded, which is not justified in the facts and circumstances of the case. This will cause undue hardship. 8. Per contra, Mr.Gisthi, learned standing counsel for the 2nd respondent relied upon the findings of the Tribunal in para-4 and submitted that the Tribunal came to the conclusion that there is a dispute on the classification of goods under Chapter Heading 49. Further, it is a case of suppression and no Bill of Entry was filed. It was also submitted that the Tribunal noted that there is a cash flow of ₹ 3.80 Crores for the year ending 31.3.11 and, therefore, it ordered pre-deposit in a sum of ₹ 20,00,000/- only, which warrants no interference. 9. We have heard Mr.Kalam, learned counsel appearing for the appellant and Mr.Haja Mohideen Gisthi, learned Addl. Central Government Standing Counsel appearing for the 2nd respondent and also perused the documents available on record and the judgment relied on by the learned counsel for the appellant. 10. The issue that has to be considered is whether the goods that have been cleared from the Special Economic Zone to the DTA are goods falling under Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 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 legs to stand on, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine manner 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 licence 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 citizen s faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a hardship to be undue it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interests of the Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue. 12. We find much force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant. 13. For the foregoi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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