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TMI Blog1985 (4) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... e Application is that the deposit of penalty of ₹ 20,000/- be stayed pending final disposal of the appeal rather than one for dispensing with the mandatory requirement of a prior deposit in terms of Section 129E of the Act. Obviously, a stay of the mandatory requirement of a prior deposit is not what was contemplated in the aforesaid provision. There is no question of a stay of the deposit. Rather, it could be dispensed with. The prayer, as worded, would appear to have been designed to facilitate reliance upon the decisions of Courts relating, generally, to the grant of stay in appropriate cases, regardless of their applicability in the context of the statutory provisions in Section 129E of the Act. 3. Even so, we proceeded to hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount involved. If it is a heavy amount, it should be presumed that immediate payment, pending an Appeal in which there may be reasonable chance of success, would constitute hardship. Quick realisation of tax may be an administrative expediency but that, by itself, is no ground for refusing stay [reliance on 37 ITR 267 - Aluminium Corporation of India v. C. Balakrishnan and others, 147 ITR 120 - V.N. Purushottaman v. Agrl. Income Tax Officer and another]; (d) accordingly, in a consideration of the question of undue hardship for dispensing with the deposit, in terms of the proviso to Section 129E of the Act, it is not merely a monetary hardship that has to be taken into account but the existence of a prima facie case as well, among ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of such recovery can be granted, additionally, if prayed for, in the exercise of the incidental or ancillary powers that inhere in the Appellate forum [AIR 1959 S.C. 430 - I.T.O. v. M.K. Mohammad Kunhi; and the Tribunal s decisions in 1983 (2) E.T.R. 357 (Atma Steels Pvt. Ltd. v. Collector of Central Excise) and 1984 (16) E.L.T. 445 (CCE, Bombay v. Crescent Dyes Chemical Ltd.) while examining the scope of Section 35F of the Central Excises and Salt Act, 1944, in para materia, with Section 129E of the Act]; (c) Section 129E of the Act, prescribes a deposit as a condition precedent for the hearing of the Appeal. It is, hence, relatable to the maintainability of the Appeal itself rather than to any order, interlocutory in nature, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgets of Governments and Local Authorities affirmatively prejudiced to the points of precariousness consequent upon interim orders made by Courts. All this is not to say that interim orders may never be made against public authorities... In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bona fide with due regard to the public interests, a Court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, in the case of a Writ Petition under Article 226 of the Constitution of India, the question of the existence of a prima facie case loses all relevance in the context of Section 129E of the Act. If an Appeal cannot be heard and it may even be rejected, unless the deposit is either made or dispensed with, an enquiry into the existence of a prima facie case in a consideration of undue hardship in making the deposit is not called for. It is as much as to come to a conclusion on the merits of the Appeal, howsoever, tentative or perfunctory a prima facie view can be; (h) in construing the expression undue hardship , one is not to lose sight altogether of the context or the setting in which it occurs. The provision speaks of a pre-depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1984 - M/s. Spencer Co. Ltd., Madras v. Collector of C.E.) that undue hardship (occurring in Section 35P of the Central Excises and Salt Act, 1944-in pari materia with Section 129E of the Act) would include a consideration, inter alia, of the aspect of liquidity possessed by the assessee. ; (i) that undue hardship does not signify anything other than financial hardship and it is not the existence of a good case even prima facie, that is required to be considered, was the view we had consistently taken right from 31-3-1983 when we pronounced our order in an Application for Stay in Appeal No. 133/83-NRB (M/s. Tribhuwandas Bhimji Zaveri v. Collector of Customs and Central Excise, New Delhi). As observed by us in that matter, if, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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