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TMI Blog2014 (9) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... imported BMW cars under Export Promotion Capital Goods (EPCG) Scheme. As per the said scheme, the vehicles imported should be used for tourist purposes only. The Department noticed that these imported cars were used for private purposes, in contravention of the terms of the EPCG Scheme. In view of the above, the cars were seized by the Department, but were subsequently released on the appellants furnishing bond of Rs. 1,30,74,927/- along with Bank Guarantee of Rs. 1,30,74,927/-. Subsequently, show cause notices were issued to both the applicants proposing to confiscate the cars, apart from demanding duty along with interest and penalty. 2.2. The appellants in their reply to the show cause notice pleaded for dropping of the proceedings sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the order of the Tribunal is contrary to the period of export obligation of eight years under Chapter 5 Export Promotion Capital Goods Scheme of the Foreign Trade Policy (2004-2009)? (ii) Whether the order of the Tribunal is erroneous in not following the precedent set in the case of Air Travel Bureau Ltd. v. Commissioner of Customs, New Delhi reported in 2009 (237) ELT 283 (Tri.Del.), which was upheld by the Delhi High Court and also by the Supreme Court? (iii) Whether the order of the Tribunal is erroneous in holding that there is no material available that the imported cars were used for tourist purposes only? (iv) Whether the order of the Tribunal is erroneous in holding that prima facie there is violation of exemption notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank guarantee. What remains to be paid by the appellant is the balance amount of duty, interest and penalty, which the Tribunal itself has ordered to be waived on such encashment of bank guarantee. 6. As on date, the conditional order passed by the Tribunal has been complied with by the appellants and the interest of the Revenue is safeguarded. We also find force in the plea of the appellants regarding financial hardship due to the major fire accident that took place at the premises of the second petitioner/hotel. Therefore, we are of the view that the Tribunal should take up the appeals filed by the appellants and dispose of the same on merits. 7. The above said view is fortified by a decision of the Supreme Court in Benara Valves L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 safegua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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